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day,” McCullagh wrote in 2002, “that I fret about committing a string of federal felonies that could land me in prison until sometime in 2008.”
Although it’s possible that a court would consider this type of DMCA breach to be fair use, because it was for the purpose of news reporting, McCullagh chose not to find out the hard way. Under the current DMCA regime—and in the way its authority has been
overreached several times—it’s more difficult to publish something akin to the Pentagon Papers. In 1971 former Pentagon official Daniel Ellsberg leaked the military’s internal history of the Vietnam War, which proved the government had lied to its citizens in several important ways. Ellsberg’s leak to the New York Times and the Washington Post contributed to a chain of events that helped end the war, an example of how free information flow is important for democracy.
Under the DMCA, however, the federal government would have
grounds to prosecute an informant who leaked the protected information or password, or a journalist who picked the digital lock on a federal document prepared by a private company. As the U.S. government continues to increase secrecy and roll back civil liberties, it’s quite possible that the DMCA might be used by the Department of Justice for repressive purposes. This possibility highlights one of the main problems with this law: It contains very narrow “fair use”
exemptions, and the few exemptions that do exist are vague enough to scare away potential do-gooders and whistle-blowers.
In an example of DMCA prosecution gone awry, on July 16,
2001, a foreign computer programmer was arrested and detained for months when he gave a conference presentation in Nevada. No, he wasn’t an al-Qaeda operative. Dmitry Sklyarov was a software programmer representing his company, ElcomSoft, based in Russia.
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charged him with trafficking in and offering to the public a software program that allowed a consumer to copy e-books onto one’s laptop computer or PDA. The interesting thing is that Sklyarov and company weren’t accused of infringing any copyrights, and their Advanced eBook Processor was designed so that it could be used only by people who had already lawfully purchased an e-book from a retailer. However, merely designing a software program that breaks copy protection is a criminal act.
Sklyarov was held in jail for nearly a month, then released on fifty thousand dollars bail, though his movements were restricted to northern California. On December 13, 2001, Sklyarov was released from U.S. custody and allowed to return to his home in Russia, but only after he agreed to testify against his employer. During the two-week trial, government prosecutors claimed ElcomSoft created “a tool for burglars.” It also characterized the company as “an affiliate of hacker networks that was determined to sell the Advanced eBook Processor despite its questionable legality,” something that just wasn’t true. ElcomSoft was eventually acquitted by a jury; it decided that the software was illegal but the company didn’t know it was violating the law. In other words, this decision upheld the legality of the DMCA, and the defendants were merely lucky because—
this time, at least—the jury felt that the company was ignorant of American law.
Even old-school copyright-infringement claims can scare away
people who are legitimately using the “unauthorized” material for educational, historical, or other similar purposes. Such was the case with Simon Waldman, the director of digital publishing for
Guardian Newspapers who published on his personal Web site a
1938 Homes & Gardens puff piece on Adolf Hitler. “There is nothing pretentious about the Führer’s little estate,” the fawning Homes
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or Nuremberg might possess in these lovely hills.” When Wald-
man e-mailed the magazine’s current editorial director, Isobel McKenzie-Price, to inform her about his interesting find, she responded by demanding that he remove the copyrighted article
from his Web site. It was, she said, an “unauthorized reproduction of IPC’s material”; IPC Media is a subsidiary of TimeWarner.
The article referred to Hitler as a “droll raconteur” whose “bright, airy chalet” had “the fairest view in all of Europe.” The magazine and its parent company obviously didn’t want to remind people of this prose, but as the Bozo-battling Tim Quirk reminded us, “Copyright isn’t a right to not look like an idiot.” As was the case with the equally scary Diebold memos, copies of the article replicated themselves throughout the Internet, multiplying much faster after word leaked that Homes & Gardens tried to suppress it. More people found out about the article because of IPC’s protests (and the ensuing articles in the New York Times and other papers), making this attempt at copyright censorship backfire.
EDUCATION IN A PRIVATIZED WORLD
When it comes to education in particular, you’d think that copyright wouldn’t trump freedom of expression®, but it does, quite often. There’s a professor out there, who I’ll refer to as Dr. Nancy X, who doesn’t want me to share the particulars of a copyright horror story she lived through. Therefore, I’ve changed some superficial details to throw the copyright police dogs off her scent. Because of the nature of her analysis, Dr. X needed to reprint in her book a certain amount of lyrics quoted from the performances of the cover bands she studied. Going the legitimate route, she sought the permission of song publishers whenever more than two lines of a song were quoted, which meant she had to pay hundreds of dollars to McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 250
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several companies. The labyrinthine formula publishing companies used to determine the licensing fee was extremely arbitrary, says the professor, with some representatives from Company Y arriving at a figure by asking her what Company Z charged.
But the real problem occurred when she tried to quote five lines of a song by a popular recording artist. She sent the manuscript pages, just as the song publisher asked, but the context wasn’t flattering (the cover performer she wrote about injected sarcastic comments into the lyrics). In response, the company denied her
permission to reprint those lyrics or any other lyrics controlled by the publisher—just to be vindictive. “Along with the letter denying permission,” Dr. X told me, “they sent me a form to sign promising that I wouldn’t use the songs. They’ve since sent me the same form again. My response has been to ignore these missives, though I’m always afraid this will come back to bite me in the ass.”
Dr. X was especially nervous because she went ahead and used
the two forbidden songs, though she pared the quotes down to a couple lines each in the published book. It was a seemingly inconsequential amount, but she still didn’t want to take any chances, which is why I altered the surface details of the story. After I gave her the chance to preview this manuscript, she even asked me to change how I came to know about the story, because it contained traces of evidence that could identify her book, and her transgres-sion. “Probably, it was idiotic of me to call attention to this at all,”
she sighed, knowing I was going to write about it—though she
doesn’t blame me for wanting to tell her tale. “I, too, collected horror stories of this sort for a while,” she said, “if only to put my own experience in context, mostly having to do with the exorbitant fees requested of academic authors to reprint a few lines of lyrics in books that barely sell a few hundred copies.”
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dealer just for doing her job. This isn’t an isolated story, either. It happens with shocking regularity to scholars who choose to write about popular culture, something Professor Sheila Whitely commented on in her article “ ‘The Sound of Silence’: Academic Freedom and Copyright.” Responding to Whitely’s piece, Professor
Timothy Taylor concurred in his essay “Fair Use Isn’t Fair,” giving examples of the way his publisher’s copyright policies constrained the contents of his book Global Pop. Taylor stated,
My editor at Routledge tended to be extremely cautious about
such matters; if we had a refusal from anyone, no matter how
unconsidered, he wouldn’t allow anything to be reprinted save the usual four or five lines of lyrics. I don’t think this is an unusual practice on his part, but simply cautious; no editor wants to be the person of whom an example is made in a lawsuit. And this, of course, is the way the “industry” operates: they can’t go after everyone, but they can go after someone in enforcing their extremely narrow (and, to them, profitable) notion of what “fair use” means.
The fifteenth edition of the Chicago Manual of Style, a venerable resource for writers and editors, points out that “many publishers tend to seek permission if they have the slightest doubt whether a particular use is fair. This is unfortunate. The right of fair use is valuable to scholarship, and it should not be allowed to decay because scholars fail to employ it boldly.” The chilling atmosphere that blankets copyright won’t lift until the Routledges and Random Houses of the world begin loosening their restrictive internal policies—policies that don’t reflect the possibilities that the fair-use statute grants. These kinds of policies for permissions were set in stone at most big publishing houses before the fair-use statute was McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 252
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codified in the 1976 Copyright Act, a federal law. At the time, fair use was an amalgamation of state and common law, so it’s understandable that some presses were cautious.
Today, however, there’s no reason why they should remain so
conservative, especially after numerous Supreme Court decisions have expanded what is allowable under fair use. I don’t mean to just pick on corporations, because there are countless instances when universities have not stood up for practices that are clearly fair use.
If any institution can confidently invoke the fair-use statute, it is universities, but their lawyers often tend to apply the same kind of overly cautious “risk assessments” that for-profit corporations do.
Quite simply, many schools don’t want to risk a costly lawsuit, even if it’s clear the university will prevail—especially in times of budget cuts.
It’s the reason why Indiana University Press withdrew from circulation a book about an obscure composer, the deceased Rebecca Clarke, after the copyright owner of her unpublished writings and music cried foul. Liane Curtis, the editor of A Rebecca Clarke Reader, told the Chronicle of Higher Education that the alleged infringements added up to 94 lines in a 241-page book. For Curtis, the quoting of this unpublished work in a scholarly context was a fair use, but the university press chose not to find out in court. This kind of overcautious behavior even trickles down to graduate student research. When my Ph.D. advisee Hugo Burgos attempted to reproduce five images that he analyzed in his dissertation, an examiner at the University of Iowa’s graduate college told him he would likely have to get permission from the copyright holders. For a freakin’ dissertation! Hugo insisted it was fair use, but he still had to meet with a university attorney to do a “risk assessment” before he could keep the images. “They reacted as if I asked to reproduce kid-die porn,” observed Hugo, shaking his head.
The Supreme Court ruled that the commercial nature of a work
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doesn’t disqualify it from being “fair,” which is the case with my book. No reasonable person could accuse me of excerpting in this tome the lyrics of 2 Live Crew, Woody Guthrie, Ghostface Killah, and the Carter Family as a strategy to boost sales. Nor am I taking away anything from those artists. By quoting them, I’m not undermining their access to the market, because it’s very unlikely someone will purchase Freedom of Expression® as a substitute for a hip-hop album by Ghostface Killah. The freedom to borrow parts of these songs without having to ask permission is a right the fair-use statute gives me. Unfortunately, I’m not guaranteed that right when I work with a big publishing house, a university, or any of the other institutions that I typically deal with in my daily work. However, there are possibilities for individual resistance.
When James Twitchell, a University of Florida professor who
studies advertising, received a legal threat after he published his book Living It Up, he fought back. Melinda Davis, a representative from the marketing firm the Next Group, discovered he had used in his book an advertising-related term she “coined” in her own public presentations and her book The New Culture of Desire. Davis explained in her cease-and-desist letter, “I am sure that you, as an author and speaker yourself, understand all too well that our words and ideas are our product—it is how we live. My business is built on the proprietary communication of concept, and I must protect it.” Davis cordially added, “I am copying this letter, not for drama but for administrative thoroughness, to our lawyer, who handles our intellectual property issues.”
Twitchell responded to Davis and her attorney—copying me, as
well—stating that if the paperback should go to a second edition, he proposed the following changes to his manuscript:
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vertising, luxe populi©. (A Melinda Davis has written me, with copies dutifully sent to her legal staff, wishing it be known that she holds the copyright to the second term. She believes she
owns the play-on-words and, to some degree, the underlying
concept. Ms. Davis is in the brand-consulting business and must, she tells me, be ever vigilant about “the proprietary communication of concept.” Hmmmm. Whatever.)
“I want you to understand I have no problem whatsoever with
legal protection for a process or an invention,” Twitchell told Davis in his biting letter. “But common language—even at its cleverest—
is too important to tie up for a spot of porridge. That’s where the rubber hits the road. You may have a legal right, but if you ever try to assert it, you should be mocked and derided and shamed.” Sut Jhally is another professor who studies advertising and who has been at the receiving end of a cease-and-desist letter. Jhally is also the founder and executive director of the Media Education Foundation (MEF), a nonprofit video-production house based in Northampton, Massachusetts. MEF has been referred to as “the
house that Dreamworlds built,” a reference to a widely viewed educational video about sexist images in music videos, titled Dreamworlds: Desire/Sex/Power in Rock Video.
After Jhally began selling Dreamworlds to other university professors for classroom use, MTV’s lawyers threatened to sue him (and the University of Massachusetts) for copyright and trademark infringement. It’s clear that this educational video, which featured a sober British voice lecturing over the video images—without music—did not threaten MTV’s market share. MTV simply didn’t like what the video said and tried to shut down Jhally’s dissenting opinion. Although the University of Massachusetts lawyers acknowledged that the video fit the definition of fair use, they advised Jhally McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 255
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to back down. This kind of self-censorship is extremely insidious and damaging to freedom of expression® in the corporate age, and it’s quite common. How in the world are commentators supposed to critique the ubiquitous, privately owned things that help shape our consciousness if we can’t reproduce them? (“Okay kids, close your eyes and imagine an MTV video, now . . .”)
Sut Jhally is a stubborn, intimidating man, and he can be very persuasive. But when he insisted on distributing Dreamworlds, the spineless university lawyers told him he’d get no institutional support. On his own, he played a game of legal chicken with MTV, and the cable channel blinked. Soon after, Jhally founded the Media Education Foundation to shield him from personal legal and financial liability. Thanks in part to the overzealous copyright bozoism of MTV, since 1991 the nationally visible MEF has fairly used thousands of fragments of copyrighted materials in the dozens of educational videos it sells—all without being sued for copyright infringement, something that sets an important precedent that others have followed.
I know Sut Jhally because he was my dissertation adviser, and when I finished my Ph.D. he tapped me to produce a critical examination of the music industry. The resulting documentary —Money for Nothing: Behind the Business of Pop Music— was narrated by Sonic Youth’s Thurston Moore, a favorite musician from my teenage riot years. It featured interviews with independent musicians Ani Difranco, Chuck D, Michael Franti, and Kathleen Hanna, as well as media critic Robert McChesney, Dave Marsh, and others.
There are many video and audio clips used throughout Money for Nothing that are needed to illustrate the things the talking heads discuss, but these images and sounds are owned by a handful of media conglomerates.
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including the expensive licensing fees) would make such an en-deavor impossible for a small nonprofit such as MEF. Anyway, these corporations would probably say no. That’s why a liberal interpretation of fair use is so important. As the distribution channels for educational materials increasingly become controlled by corporations that are not willing to take risks, it becomes crucial for independent nonprofits such as the Media Education Foundation to
survive and prosper. This necessity also makes the university setting all the more important in carving out a space where fair use can actively be practiced. Without the free exchange of ideas and images, we can’t foster a functioning democracy comprising active, informed citizens.
When books are subjected to copyright censorship and compa-
nies that ensnare schools in exclusive contracts brand our educational environments, it’s much harder for these democratic ideals to manifest themselves. Some academic presses have resisted the erosion of fair use, but they are in the minority. “Duke University Press has been a strong supporter of fair use,” editor-in-chief Ken Wissoker tells me. “We are lucky to have intellectual-property legal advisers through our University Counsel’s office who are strong supporters themselves.”
Susan Olive is Duke University’s external legal council on
intellectual-property issues, and she has well over a quarter century of legal experience. “I think it’s important for academic publishers to inform the nation and not hide behind a cover of fear,” she tells me.
“People who think academic publishers should be scared first
and publish second are flatly wrong,” though she’s careful to note that scholarly books published by big commercial houses are also protected by fair use. Susan Olive has very strong views on the subject—strong, but not radical. After all, they are backed up by the McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 257
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law itself and many legal decisions. When I tell her about how U.
Mass’s lawyers caved to threats from MTV, Olive says, “I think that that kind of behavior is atrocious. They should be ashamed of themselves.”
Fair use doesn’t give people a free ride to do anything with copyrighted materials in the name of “criticism,” for there are limits.
Duke’s editor-in-chief gives the example of using stills from a motion picture. “If the material is being used for the purpose of criticism—to make the criticism clear—that’s likely to be fair use. If it is serving only as an illustration or an embellishment, it’s not,” Wissoker states. “If the author is discussing a scene in On the Waterfront and uses a frame enlargement of that scene, it’s fair use.” But if the author only uses a still of Marlon Brando to more generally illustrate 1950s masculinity, Duke University Press probably wouldn’t consider it a fair use.
The Supreme Court has in many cases set reasonable limits on
what is fair and what is not. For instance, in Robinson v. Random House, the court rejected a fair-use defense in a court battle involving two books, one of which quoted and very closely paraphrased over 25 percent from a competing book. The high court ruled that the book published by Random House amounted to an unfair market substitution, rather than legitimate criticism. The only lawsuit the Media Education Foundation has been slapped with is Cambridge Documentary Films, Inc. v. Jean Kilbourne and Media Education Foundation. It’s an ugly case. Jean Kilbourne, a well-known media critic, had produced a series of documentaries based on her college campus lectures about the representation of women in
advertising. The series was called Killing Us Softly and had been distributed by Cambridge Documentary Films, a feminist documen-
tary collective.
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sons, so she decided to do Killing Us Softly 3 with MEF when I was working there. Cambridge quietly registered the trademark Killing Us Softly, then sued Kilbourne and MEF for trademark infringement. Feminists gone wild with litigation. At the same time,
Cambridge rush-produced Beyond Killing Us Softly, interviewing activists such as Gloria Steinem, but neglecting to tell some inter-viewees what they were up to. Kilbourne’s lawyers eventually won back the Killing Us Softly trademark, which allowed Kilbourne and MEF to legally distribute Killing Us Softly 3 without fear of litigation.
Another risk that has emerged for organizations such as the Media Education Foundation is that damned DMCA. The law makes it a criminal offense to bypass copy protection on digitally stored works, such as when you make an unauthorized copy of a DVD or e-book. Even if it’s for completely legal, fair-use purposes—with few exceptions—the act of circumvention is a criminal act. For example, I recall one instance while making Money for Nothing where one of the coproducers (may or may not have) bypassed the copy protection on a DVD so that we could include a very brief clip in the documentary. Although our intent clearly falls under the domain of fair use, the act of circumventing the copy protection on a DVD is quite illegal under the DMCA, especially because the documentary is for sale. It’s an awful catch-22.
Additionally, I teach undergrad classes on the media, and I often compile clips from movies and TV shows to use as examples and provoke discussions. (It’s far more efficient to do this than to bring a stack of videos and DVDs to class, especially when I’m using a lot of examples.) This kind of educational practice is absolutely a fair use and doesn’t require me to ask permission of the copyright owner to duplicate or show clips. But if I wanted to draw from a DVD—a director’s commentary track, bonus feature, or simply a McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 259
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scene from a movie—I would have to break the encryption on the disc. Even though this use is for educational purposes, and is fair, to do so I would have to acquire a banned software program, which is against the law. As the media we consume increasingly moves into the digital sphere, these kinds of situations will become all the more common, unless Congress lifts these stifling DMCA restrictions.
RESEARCH IN A PRIVATIZED WORLD
It was 2000, and the music industry was just coming to terms with the reality of digital downloading. The Recording Industry Association of America (RIAA) halfheartedly founded the Secure Digital Music Initiative (SDMI) to explore “safe” ways of distributing music online. Issuing a challenge to the professional cryptography community, the SDMI encouraged researchers to defeat its copy-protection technology to test its security. Dr. Edward Felten, a professor of computer science at Princeton University, led a team of researchers from Xerox, Princeton, and Rice University who successfully met this challenge. Felten’s team detailed their findings in a paper and prepared to present them at an academic conference.
Then the SDMI and the RIAA got nervous and asked Felten to
remove the parts of the paper that reveal the technology’s weaknesses, but the researcher refused. These music-industry organizations asserted that “any presentation of the paper at a conference or subsequent publication of the paper in the conference proceedings would subject these persons and their institutions to liability under the DMCA.” The SDMI and RIAA made clear their intention to
take legal action, and after meeting with lawyers, Felten and his team pulled out of the conference because of the potentially high costs of litigation. Felten read the following statement at the Pittsburgh conference:
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On behalf of the authors of the paper “Reading Between the
Lines: Lessons from the SDMI Challenge,” I am disappointed to tell you that we will not be presenting today. Our paper was submitted via the normal academic peer-review process. The re-
viewers, who were chosen for their scientific reputations and credentials, enthusiastically recommended the paper for publication, due to their judgment of the paper’s scientific merit. . . .
Litigation is costly, time-consuming, and uncertain, regardless of the merits of the other side’s case. Ultimately we, the authors, reached a collective decision not to expose ourselves, our employers, and the conference organizers to litigation at this time.
The RIAA eventually said it would not sue Felten, but the activist lawyers at the Electronic Frontier Foundation wanted a court order that would prevent this from happening again. However, District Judge Garrett E. Brown ruled against Felten and EFF, dismissively stating, “Plaintiffs liken themselves to modern Galileos persecuted by the authorities. I fear that a more apt analogy would be to modern day Don Quixotes feeling threatened by windmills which they perceive as giants.”19 Later, in 2003, a lone Princeton grad student was threatened by SunnComm after he published on his Web site an academic paper titled “Analysis of the MediaMax CD3 Copy-Prevention System.” In the paper, Alex Halderman gave detailed instructions about how to disable the technology encoded on a music CD that prevented consumers from digitally copying music files.
The paper gained attention, and after SunnComm’s stock price
dropped the company went on the offensive. The funny thing is that Halderman’s “circumvention” entailed holding down the Shift key when loading the CD in the computer, which prevented Windows from launching SunnComm’s technology. For that, an en-
raged SunnComm CEO Peter Jacobs