TOO MUCH CONTROL AND TOO MUCH FREEDOM
IN THE early 1990s, Warner Home Video president Warren Lieberfarb was the first executive in Hollywood to see the full potential of the DVD format. As he met with his counterparts at other studios and convinced them to adopt the DVD, he also convinced them to learn from the mistakes they had made with the VCR. This time, Hollywood would not play catch-up to small rental stores; DVDs would be sold at consumer-friendly prices, encouraging direct sales over rentals. Hollywood would not endure another format war either; the studios joined a consortium of technology, media, and software companies that all agreed to pool patents and adopt a single disk format; every approved DVD player and computer operating system would be able to play the same disks. With the DVD, Hollywood studios would not be slow to employ copy protection as they had been with the VCR; all DVDs would come equipped with a digital lock, the Content Scrambling System, which would require a software key to be unlocked. And finally, Hollywood would not be late to the negotiating table; well before the DVD was released in the United States, studio lobbyists were asking Congress for new copyright policies to protect their investment in the new digital format.
Hollywood’s lobbyists asked Congress to back the industry’s copy protection standard with a law making it illegal to bypass the encryption—the digital locks—on DVDs. Their efforts were unsuccessful at first, and DVDs were released to the U.S. market in 1997 without the legal protection Hollywood sought. But the studios did not give up, and they found a receptive partner in the Clinton administration’s Undersecretary of Commerce for Intellectual Property, Bruce A. Lehman. Together, they successfully pushed through an international treaty of the United Nations World Intellectual Property Organization. In order to comply with the treaty (and go well beyond it), Congress passed the 1998 Digital Millennium Copyright Act (the DMCA), finally backing Hollywood’s copy protection with law. The so-called anticircumvention provisions of the DMCA make it illegal to disable or bypass the copy protection on DVDs and other digital media or to traffic in anticircumvention tools. Since 1998, Hollywood has both made the locks and held the keys. And the studios control access to commercial digital media almost completely.1
But Hollywood studios were not the only group invested in the future of digital media in 1998. Network operators like Verizon and America Online and website hosts like Yahoo! also pushed to have the future of their businesses protected by the DMCA. More specifically, the online service providers, as they were called, worried about their responsibility for the content that traveled over their networks. Policing the massive amount of information on websites was a daunting task. Would they be held liable for copyright infringement if customers uploaded pirated material to one of their networks or websites? The service providers successfully petitioned for the addition of another section of the DMCA, which gave them “safe harbor” protection from claims of copyright infringement that took place on their networks. As long as the service providers and web hosts followed the correct procedures and worked quickly, individual web users and copyright holders were left to settle disputes on their own, without the involvement of the network and site owners.
Together, these two sections of the DMCA—the anticircumvention and safe harbor provisions—have created today’s internet media environment. This chapter looks at the ways that the DMCA has changed the landscape of media production, distribution, and consumption. The DMCA has created mechanisms for turning over media regulation to Hollywood studios and, to a lesser extent, internet users. Throughout this book, I have chronicled Hollywood studios’ attempts to regulate themselves in order to avoid regulation at the hand of courts and Congress. In the digital era, Congress has facilitated this self-regulation.
A SHORT HISTORY OF COPY PROTECTION
Technical copy protection began neither with the DVD nor with the Digital Millennium Copyright Act. Long before digital media, authors and collectors developed technical means for protecting writings. Diarists placed locks directly on their notebooks, and military strategists encrypted their communications with codes that required sophisticated keys to be deciphered. At Oxford University’s Duke Humfrey’s Library, rare books are still chained to the wall, much as they were in the fifteenth century (fig. 5.1). The American film industry also has a long history of using technical protection to block access to films, although these devices have generally been used to block competition rather than to prevent unwanted access altogether.
As I discussed briefly in the first chapter, technical differences kept early movie companies from using each other’s films and equipment. Film gauges and sprocket holes, in particular, varied widely from company to company. Thomas Edison adopted the now standard 35mm film gauge when his lab began cutting Eastman Kodak’s 70mm still photo film stock in half, doubling the amount of footage his cameramen could shoot. Other companies tended to use slightly larger film sizes, ranging from 38mm (Sivan/Dalphin, Geneva) to 70mm (Brit Acres, U.K.). Some companies, including Edison, tested smaller amateur gauges, usually between 13 and 21mm. The placement of sprocket holes varied as well. Edison adopted a method of using four square-shaped perforations on each side of the frame to move the celluloid through the camera and projector (fig. 5.2). But in France, the Lumière brothers placed a single sprocket hole on each side of the frame, and it was round not square. Other companies’ cameras and projectors, American Mutoscope and Biograph’s for instance, ran without any sprocket holes at all. They used friction to move the film through the gears.2
FIGURE 5.1 Early copy protection: books chained to the walls in the Duke Humfrey Library, Bodlean Library, University of Oxford. (Courtesy of and copyright © The Dean and Chapter of Hereford Cathedral and the Hereford Mappa Mundi Trust)
FIGURE 5.2 The placement of sprocket holes tied films to the specific projectors and cameras, much like the copy protection on digital media today. (Courtesy of the U.S. Dept. of the Interior, National Park Service, Thomas Edison National Historical Park)
These were not simply the chance experimental differences that often accompany new inventions. The structure of the film industry depended on the design of celluloid, and Edison and Biograph fought bitter patent battles over the width of film stock and the placement of sprocket holes. Control over the technical design of film gave one company the ability to lock out its competitors. During a brief period when Edison claimed patent rights to both the 35mm film gauge and the placement of sprocket holes, he was legally (as well as technically) able to bind his films to his projectors. Unlicensed theaters were thus prevented from showing Edison films, which would not run on their projectors. And Biograph and other production companies were prevented from selling their films to theaters with Edison projectors. These legally backed technical restrictions successfully prevented legitimate competition. Edison’s claims were so broad that in order to enter the market, a new company would have had to do everything from developing its own camera and projector designs to manufacturing its own film stock with a novel perforation pattern. In addition to impeding competition, technical restrictions also led to increased piracy. As we saw in chapter 1, competitors regularly copied and converted each other’s films in order to use them on incompatible equipment. Things loosened up slightly in 1903 when Edison lost his claim to the 35mm film width, but he continued to control the use of his sprocket design. This was the first—but certainly not the last—time that the film industry would use a combination of legal and technical means to block competition.3
Film gauges and sprocket holes defined early film formats. The size and placement of perforations marked the film (the content or software) in such a way that it became compatible or incompatible with the cameras and projectors (the hardware). Seen this way, today’s copy protection is simply an extension of format technology. The software encryption placed on DVDs and other digital media is really an artificial means of re-creating the real incompatibilities of physical media formats. Apple adds copy protection that only allows iTunes-purchased video to be played on Apple-manufactured or licensed products, and Microsoft does the same.
Format contests, like the one that took place over the design of early film stock, have always threatened to unsettle the film and television industries. Companies that control the patents on new technologies often have a significant advantage over their competitors. Hollywood has gone through many format overhauls, some decisive and some abortive, from the lasting adoption of 35mm film to the 3-D fad of the 1950s. Despite the format changes continually on the horizon, however, Hollywood studios have generally approached most new technologies afresh, reacting to changes as they came along rather than preparing for the inevitable format changes ahead.
There are two notable exceptions to this rule. One, as we saw above, is the adoption of the DVD. The other is the transition to sound film in the 1920s—arguably the largest format shift in the history of Hollywood. The transition to sound entailed refitting every commercial movie theater across the globe, not to mention building new sound-ready studios and labs. It is difficult to imagine the scale of that infrastructural change in an era when adopting a new format means little more than downloading some new software. Sound technology threatened to launch a major format war, but it was a war that the studios calculatedly avoided. As Douglas Gomery has shown, the large Hollywood studios did not respond haphazardly to the development of sound film technology. They worked together to make reasoned, economically motivated decisions about the adoption of new sound formats.4
The two studios that pioneered the use of sound, Fox and Warner Bros., were both “minor” studios at the time; they did not own large theater chains like MGM, Paramount, and the other “majors.” In 1926–27, Fox and Warner began to employ different sound technologies in bids to enter the ranks of the majors. Fox used a sound-on-film system, and Warner tried a sound-on-disk method. They were incompatible technologies, although they shared some underlying patents. Any company that chose the winning format would have gained an enormous advantage in the industry, potentially blocking others from access to theaters that had adopted one or the other system. But the majors decided that the risks of losing this battle were too great. Rather than embrace either system, the five largest studios signed an agreement, collectively consenting to study the different technologies and eventually adopting a single industry standard. In the end, the majors chose a third technology, a sound-on-film system developed by a subsidiary of AT&T and Western Electric. Gradually, the new system was installed in all the major studios and movie theaters. As they would later with the DVD, film studios avoided an internal struggle over the adoption of a new format in favor of a single industry-wide standard. By adopting a single standard, the studios also avoided a clash with theater owners, who would have had to align themselves with one format or another or wait until a single format won the contest. As a result of studio executives’ foresight, Hollywood enjoyed a thriving and profitable sound film business in the early 1930s, even as the Great Depression engulfed other industries.5
The next major format shift, the move to home video, marked an epochal change in the industry’s approach to copy protection. The competing Betamax and VHS standards led to a short-lived and overhyped format war. But that was not the most important change in the film industry’s approach to tying content to technology, software to hardware. When adopting a standard film stock in the 1890s and a standard sound technology in the 1920s, film companies chose between physically different formats: round or square sprocket holes, sound on disk or film. But with the VCR, the industry-wide adoption of the VHS standard was only the beginning of the effort to technically control access to films. Led by MCA/Universal, Hollywood studios pushed for the addition of artificial locks to be added to videotapes. Moreover, they asked for a new legal approach to copy protection. Earlier format wars had focused on using patent licensing to control the diffusion of technology. But new forms of copy protection were justified as a means of blocking the duplication of copyrighted material. And the studios lobbied to have their new methods of copy protection mandated by law. Perhaps for the first time, studio executives and lobbyists envisioned technical copy protection as an extension of copyright law in addition to a technology to be controlled through patents.
The first sign that a new vision of copy protection was emerging appeared during the district court’s hearing of the Sony Betamax case. MCA/Universal had been searching for a legal theory that would hold Sony responsible for instances of copyright infringement involving its Betamax VCR. In addition to Universal’s team of lawyers, the studio also put its engineering department to work on the problem. Universal’s Academy Award–winning sound engineer, Richard J. Stumpf, was prepared to testify that Sony could install a $15 jamming device in VCRs that would stop unwanted copying. The device would have responded to signals embedded in television programs, preventing recording when copyright holders did not grant permission to have their work copied. If the device worked as promised, it is possible that Judge Warren J. Ferguson might have found that Sony had not done enough to deter its customers from using their VCRs for illegal purposes. Judge Ferguson could have found that Sony needed to employ a similar form of copy protection in order to remain free from liability when customers used their VCRs for illegal copying. (Decades later, the Ninth Circuit would reach a similar conclusion about the file-sharing software company Napster.) But instead, Judge Ferguson dismissed the argument, refusing to hear Stumpf’s testimony at all. “As sure as you or I are sitting in this courtroom today,” he explained to the court, “some bright young entrepreneur, unconnected with Sony, is going to come up with a device to unjam the jam. And then we have a device to jam the unjamming of the jam, and we all end up like jelly.”6
Judge Ferguson’s logic was as impeccable as his exposition was memorable. Every new form of copy protection is eventually defeated, and the copy protection arms race never ends. But the futility of the endeavor did not stop Hollywood studios from adding copy protection to VHS tapes. Even though Universal failed in its attempt to have the copy protection legally mandated, the studios continued to experiment with different technologies for blocking video copying. Macrovision emerged as the industry standard, and all of the studios eventually employed Macrovision on prerecorded tapes, despite the fact that a $200–$300 image stabilizer already on the market could easily counteract the Macrovision signal, resulting in high-quality copies.
What effect did Macrovision have? First, it did little to stop large-scale piracy. Pirates could simply purchase an image stabilizer and get on with their work. In fact, a healthy new market for image stabilizers developed, as Judge Ferguson predicted. Schools and other institutions that made clips from videotapes for fair use purposes were also largely unaffected, since many of them could also afford image stabilizers. In the end, home users felt the largest impact from Macrovision. VCR owners regularly complained that Macrovision caused interference and distortion when they played their legally purchased or rented tapes. Other home users were led to buy image stabilizers on top of their already expensive VCR purchases, or they discovered that Macrovision did not impair the copies they made when they recorded to Betamax or 8mm videocassettes. Interested readers need only open up Popular Science or even the New York Times to find articles explaining methods for getting around copy protection. In short, Macrovision was a nuisance rather than a real deterrent, and it affected home users, not pirates or organizations that might have attempted to profit from their copying.7
Why then did Hollywood studios continue to invest in and use copy protection? Perhaps the studio executives were content to prevent copying by VCR owners too lazy to investigate alternate means of making copies—clearly the majority of VCR owners. Perhaps they saw Macrovision as an investment in the future: they hoped that the technology would improve, or they held out hopes for legal enforcement of copy protection. Perhaps there was a psychological effect: filmmakers and the studio executives felt better knowing that their films were going out into the world with a lock, however flimsy. After all, most diary locks are easily pried open, and in World War II Allied cryptologists regularly read Germany’s encrypted communications. No doubt all of these factors were important, but most practically Macrovision was important because of the message that it sent, not its effectiveness. When VCR owners encountered Macrovision, they were reminded of the limits studios wanted to place on the use of VHS tapes. In many cases, the limits studios set with Macrovision mirrored the legal limits established by copyright law. But in many other instances, Macrovision stood in the way of legitimate fair uses of video, and consumers had to decide whether or not they wanted to take the next step and get around the copy protection.
While the film industry experimented with Macrovision, music companies turned to copy protection to save them from what Recording Industry Association of America (RIAA) president Stanley Gortikov called the “assassins” at Sony and other electronics companies. In the 1980s, Gortikov led an all-out campaign to keep digital audiotape out of the American market. Magnetic tape recorders had been available to consumers since the late 1940s, but when consumers made copies with analog media, the sound was degraded with each successive copy. The high fidelity of digital recording, Gortikov told Congress on multiple occasions, necessitated a new form of regulation. And one of the solutions that he sought was a legal mandate that copy protection systems be included in all digital audio players. Gortikov and the music industry asked further that it be made illegal to circumvent or disable the copy protection on digital audiotapes.8
In 1987, Senator Al Gore and Representative Henry Waxman proposed bills that would have achieved the RIAA’s objectives and mandated the inclusion of anti-copying technology in digital audio players. Those bills and a subsequent Senate bill failed to win much support, but after years of negotiations the Audio Home Recording Act of 1992 finally introduced congressionally mandated copy protection to copyright law. The Audio Home Recording Act required that the Serial Copyright Management System be included in digital audiotape players. This form of copy protection allowed for the creation of backup copies, but consumers were blocked from making copies of the copies. Eliminating second-generation copies was intended to prevent the serial sharing of commercial music. Significantly, computers were specifically exempt from this legislation—a concession that the recording industry would greatly regret just a few years later. When computers and MP3 players began to replace audiotape as the major medium for music copying, the Audio Home Recording Act, which only applied to digital audiotape, became all but irrelevant.9
The Audio Home Recording Act’s effectiveness may have been short-lived, but it gave Warren Lieberfarb and other Hollywood executives confidence to move ahead with plans to adopt the DVD format. If Congress had been receptive to the music industry’s claims that the high-quality copies made possible by digital audiotape required a ban on hacking copy protection, it followed that digital video would need the same protection. The election of President Bill Clinton and Vice President Al Gore the year after the passage of the Audio Home Recording Act further indicated the ascendency of a new copyright regime for digital media—one based on locking media behind digital encryption. Shortly after taking office, Clinton and Gore formed a working group to study the growing “information superhighway.” Among other findings, the group concluded that copy protection would be necessary to encourage media companies to release their content on the web. These two forces—the release of protected digital video in the DVD format and the recommendation that copy protection be legally mandated to encourage the movement of content to the web—eventually came together to create the anticircumvention provisions of the DMCA.
In 1998 the Hollywood studios finally realized Edison’s dream: they were able to use a legally backed technical standard to control all uses of their digital content. As we have already seen, the DMCA made it illegal to circumvent the copy protection on digital media (including DVDs) or to traffic in circumvention tools. This mandate gave the studios the ability to block competition, as Edison once had. Since only authorized companies were licensed to use the decryption key, the studios could determine which devices would be able to play DVDs legally. Computers running the Open Source computer-operating system Linux, for example, were not authorized to play DVDs; computers running the Apple and Microsoft operating systems could play them. The studios also refused to license the decryption key for use in machines that could play DVDs from multiple geographic regions or DVD players with analog output cables that could be used for copying. Since studios’ and other copyright holders’ new legal powers seemed to stretch to technology as well as content, intellectual property scholars began to refer to the rights granted by the DMCA as a “paracopyright” or “pseudo copyright.” The DMCA created a new layer of control on top of the traditional realm of copyright protection.10
In this new regime, copy protection systems do not even have to be very good. Hackers quickly cracked DVD copy protection, the Content Scrambling System (CSS), and they began to circulate the decryption key, popularly known as DeCSS. The Motion Picture Association of America, the DVD Copy Control Association (which licenses the DVD decryption key), and the studios quickly teamed up to block the distribution of DeCSS. Although the studios have consistently won cases that have sought to halt the circulation of or the unauthorized use of DeCSS, programs that use DeCSS remain widely available on the internet. Legitimate businesses are prevented from developing technologies that deploy unlicensed decryption keys, but consumers still have easy access to the tools for playing and copying DVDs and other digital media.
In this way, CSS encryption’s effect is very different from that of pre-DMCA copy protection. Before the passage of the DMCA, Macrovision was an annoyance to individual home video copiers, but it did little to stop either large-scale piracy or institutions, like schools, that engaged in frequent fair use copying. CSS encryption continues to pose little threat to pirates, many of whom copy entire disks with copy protection intact. But the DMCA has dramatically raised the stakes for individuals and institutions that want to make copies of digital video files for reasons that would otherwise be protected by fair use. Neither Macrovision nor CSS discriminate between fair use and illegal copying; they hamper legal and illegal copying equally. Before the passage of the DMCA, educators, artists, and amateur video makers who believed that their copying was covered by fair use could bypass Macrovision and defend their actions in court if it came to that. The DMCA, however, made circumventing copy protection illegal, regardless of whether the copying was protected by fair use or not.
The second effect of the anticircumvention provisions is that a very large number of consumers have refused to accept the artificial limitations imposed by encryption. The DMCA has driven them to break the law, using illegal decryption programs to copy DVDs to iPods or downloading videos from file-sharing sites because no legal alternative exists. Since the Ninth Circuit Court of Appeals effectively shut down the file-sharing service Napster in 2001, the number of active peer-to-peer file sharers has almost doubled. These may be illegal activities, but they frequently result from frustration rather than malice. And as I have seen while teaching college students, year after year the use of illegal copying tools and illegal means of acquisition becomes more and more naturalized as legal alternatives remain scarce and limiting.11
Is this the irrevocable condition of digital media and the internet? Can these problems be solved? Former Virginia Representative Rick Boucher tried repeatedly to introduce legislation to reverse some of the most restrictive elements of the DMCA, but none of his proposed bills gained much support. It is unlikely that a legislative solution is in the offing. If there is a solution, it will have to come from the media industries themselves. Media moguls since Edison have asked for the ability to control the distribution and use of media through legally backed copy protection. Now that they have finally been granted that power, they will have to realize that it comes with much greater responsibility than they had ever imagined. An overly firm hand has alienated consumers and jeopardized the kind of technical innovation that has always increased video consumption and filled Hollywood’s coffers. Hollywood studios will have to learn how to wield their power more judiciously and creatively in order win back consumers and stimulate the video market that is essential to their continued existence.
In a last-minute addition to the DMCA, Congress responded to the concerns of public interest groups. They empowered the Librarian of Congress to create exemptions to the anticircumvention provisions. Every three years, the Copyright Office solicits comments from anyone who can show that the DMCA has interfered with fair use and thus requires an exemption. After several rounds of written comments, a series of hearings, and a consultation with the Commerce Department, the Register of Copyrights makes a recommendation to the Librarian of Congress. The Librarian then issues the list of exemptions. Three years later, they start the process over again.12
Fair use advocates and legal scholars were initially excited by the rulemaking process; it promised to return the rights of consumers, educators, librarians, and the many others whose existing fair use practices had been curtailed by the DMCA. Consumer advocacy groups, legal scholars, and archivists petitioned for exemptions during the 2000 and 2003 rulemakings. By the end of the 2003 rulemaking, however, only four very narrow exemptions had been created. One exemption was designed to help blind readers turn on the Read Aloud function of ebooks even when the publisher had blocked that option. Another exemption allowed archivists to copy old video games in order to make preservation copies. All of the exemptions were very narrow, and the number of petitions for exemptions began to drop. The usually active Electronic Frontier Foundation, for example, decided to boycott the 2006 rulemaking, claiming that the process was “failing consumers completely.”13
The biggest problem with the rulemaking was contained in the statutory language of the DMCA. It instructed the Copyright Office to create exemptions for “classes of works.” But fair use is about use and context; it is not determined by the class of works being used. The exemption process and fair use were inherently incompatible. Nevertheless, more comments were submitted during the 2006 rulemaking, including one by me and two of my colleagues at the University of Pennsylvania, Katherine Sender and Michael X. Delli Carpini. We asked for an exemption for media professors who need to make clips for use in classes. At least since the 1910s, film professors have been using film clips as illustrations in classes. And the VCR made it easy for educators to put together a compilation of film and television clips for class lectures. But the DMCA’s anticircumvention provisions blocked educators from updating their practice to accommodate DVDs and other digital media. Media professors were forced to either rely on low-quality analog clips or transgress the law. With the help of American University law students, we crafted an exemption that we hoped would meet the class-of-works standard, but we also made the case that use and users need to be considered in the rulemaking process.14
Who would oppose a few professors who wanted to make clips for use in classes? At the hearing, I was surprised to find professional lobbyists from the MPAA, Time-Warner, the DVD Copy Control Association (DVD-CCA), Pioneer Electronics, and a lawyer representing a dozen other groups opposed to any and all exemptions. Only Jonathan Band, who represented library organizations, sat on my side of the table. What were the objections? Pioneer’s representative wanted to sell a DVD jukebox that the company was developing. Her argument, I guess, is that the market should be allowed to correct for lost rights. But that DVD player never appeared, and the market has not met this need. The counsel for the DVD-CCA argued that educators could develop their own DVD player—one that met their needs. The DVD-CCA licenses the keys needed to unlock DVD encryption and allow DVD players to access DVDs. After some questioning, it appeared unlikely that the DVD-CCA would authorize a DVD player to make clips in a dynamic way. Like the position of the DVD-CCA, a Time-Warner representative suggested that the tight control of the DMCA did not need to be relinquished. She noted that professors could get permission every time that they needed to use a clip. Not only would such a process be insurmountably cumbersome, but it could easily turn into a form of censorship. Documentary filmmakers, for example, are regularly turned down when they seek to license clips for use in educational films. How readily would Disney license its clips for a course on racism in the media, just for example? Finally, an MPAA executive argued that VHS tapes are good enough for educators. Professors do not need high-quality images to talk about the details of a film or television show.
While these arguments revealed the vision of total control that the mainstream film industry had been harboring since the days of Edison, they were easy to counter. And after demonstrating to the Copyright Office panel why high-quality digital clips are important to media educators, the exemption was granted. The granting of the exemption was not a foregone conclusion—just the opposite. The bar for proving harm had been set very high, and the class-of-works category seemed impossible to marry to the needs of professionals who relied on fair use. But the Librarian of Congress was able to create the exemption, because the Copyright Office staff had changed their interpretation of the statute. They decided to consider use and users in the crafting of exemptions. This was a big change.
With the new criteria for exemptions, a large and loosely aligned group of educators, filmmakers, and media professionals petitioned to have the exemption expanded in 2009. This consortium successfully broadened the exemption to include all professors, media studies students, documentary filmmakers, and noncommercial filmmakers who needed to make clips for many professional uses. The exemption process, which in 2006 appeared to be a shriveled stump no longer suitable for supporting the return of fair use rights, made good on its original promise. The exemption process became a significant venue for checking the deleterious effects of the DMCA.15
Why did the rulemaking process change so much? I would like to take some credit, but I think the truth is that the Copyright Office was responding to Hollywood’s poor stewardship of the anticircumvention provisions of the DMCA. The rulemaking takes place every three years, and with each new rulemaking came promises from Hollywood representatives that new technologies for the flexible use of digital media were on the horizon. But in reality, each three-year period saw more uses closed off by more and more powerful copy protection. Because Hollywood studios failed to exercise their new legally backed power with restraint, and because they used the DMCA to block legitimate uses of digital media, the Copyright Office intervened.
APPLE AND THE RISE OF CLOSED SYSTEMS
One company in particular, Apple Inc., has emerged as the greatest beneficiary of the DMCA’s ban on circumventing copy protection. As a direct result of the DMCA, we will see in this section, Apple moved in a few short years from having virtually no stake in the media business to being the premier legal conduit for online and mobile access to movies and television shows. Together, Apple and the DMCA brought Hollywood, often kicking and screaming, into the digital age. Under a different regulatory regime, it is clear, the online and mobile experience of media would have looked very different.
In the decade following the passage of the DMCA, Apple went from being a small, though historically important, computer manufacturer with less than 4 percent of the personal computer market to being one of the largest media retailers and device manufacturers in the world. By 2008, Apple’s iPod media player controlled over 90 percent of the market, and the company’s iTunes store had sold over 1 billion songs and more than 200 million TV episodes. Many changes led to Apple’s success as a media giant, including new leadership, innovative products, and clever marketing. But no factor outweighed the new media environment created by the DMCA. The same design and business strategies that led to Apple’s steep decline in the 1980s, we will see, caused the company to flourish in the early twenty-first century as a direct result of the DMCA.16
Apple’s cofounder and former CEO, Steve Jobs, had a singular vision of a closed, almost hermetically sealed, computer user experience since he was a teenager. In the days when computers were the playthings of engineers, hobbyists, and hackers, Jobs dreamed of turning them into discrete, user-friendly “appliances,” as he liked to put it. Throughout collaborations on projects at Apple, Jobs consistently pushed for his vision of a computer experience as streamlined and simple as possible. This vision went hand in hand with increased control over user choices. When designing the Apple II, Jobs argued for the inclusion of only essential peripheral card slots on the circuit board, one for a printer and one for a monitor, making it as easy as possible for users. But Steve Wozniak, Apple’s other cofounder and the principle architect of the Apple II, wanted more slots. Wozniak hoped that engineers, hobbyists, and hackers would discover new uses for the slots, and he wanted companies to be able to create new peripheral devices to attach to the computer. Wozniak won that particular argument, but Jobs’s vision of a closed computer did not waiver. When Jobs led the team that designed the first Macintosh computer (fig. 5.3), memos instructed the engineers to make the technology as invisible as possible. “Seeing the guts is taboo,” read one memo that went on to push engineers to hide everything except the power cord. “Ten points,” it half-jokingly concluded, if you eliminate the power cord.” Improving the user experience, in Jobs’s vision, entailed hiding the computer’s internal workings and, as a result, limiting the unintended possibilities of the machine. It also entailed blocking other companies from using Apple’s platforms or interacting with Apple’s hardware.17
A key element of Jobs’s vision for Apple was that the company makes both the hardware and the software of its computers. When consumers buy an Apple, they are submersed completely in an Apple universe, and Apple has taken great pains to control the software and hardware that runs on and interacts with its devices. Like the Edison Manufacturing Company, Apple has frequently used lawsuits to prevent other companies from creating interoperable devices and operating systems. The company has won many suits against potential competitors that “cloned” Apple’s hardware and software. But one important case involving Microsoft proved decisive for the fate of the closed approach to computer design.
FIGURE 5.3 Steve Jobs (left) introduces the Macintosh computer (1984). John Sculley (right) introduces the Lisa. (Courtesy Getty Images)
In 1983, Apple released the first commercial operating system with a graphical user interface (or GUI). Apple’s Lisa and later Macintosh operating systems had onscreen windows, mouse-controlled pointers, and the look of a virtual desktop—all of the visual elements that came to characterize the computer user experience. Apple did not invent the GUI; researchers at Xerox’s experimental laboratory Xerox PARC developed the basic elements of the GUI. But in a huge strategic blunder, Xerox executives failed to see the commercial potential of their creation. After a tour of the Xerox PARC lab, Jobs set out to refine the idea of the GUI and make it a commercial product. Apple released the first mass-produced computers with GUIs, and the company licensed several elements of its design to Microsoft, where engineers began to create the GUI operating system that they would eventually call Windows. When Microsoft finally released its new operating system, however, Jobs thought it resembled the Macintosh’s GUI too closely; it went beyond the narrow licensing terms, and Apple sued for copyright infringement. Microsoft’s CEO, Bill Gates, responded to Jobs’s claims by questioning the originality of Apple’s GUI. “Well, Steve,” Gates reportedly told Jobs in a private meeting, “I think there’s more than one way of looking at it. I think it’s more like we both had this rich neighbor named Xerox and I broke into his house to steal the TV set and found out that you had already stolen it.” Copyright protects originality, and the dispute questioned not only where the ideas had come from but whether elements like virtual trash cans and folders were too obvious for anyone to own them. 18
The case posed many novel questions for copyright law, and it dragged on for years. More important than the technical legal questions in this context, however, is how copyright law drove Apple’s business strategy. As Apple’s CEO at the time, John Sculley, explained, “Apple’s board was absolutely convinced that we would win the suit,” giving them the power to exploit their monopoly on the GUI. Apple, in other words, hoped to tie its operating system to its hardware and to be able to force consumers who wanted to use a GUI to buy an Apple computer. Apple would also have had more control over which companies could create products that worked with its closed system. Reflecting on the case years later, Sculley explained that the belief that Apple would win the case “may have lulled us into a bit of complacency.” Innovation at Apple slowed down, because of their expected ability to control the desktop software environment. With control over both the hardware and software, there was no need to improve on their products.19
But when Apple failed to secure its monopoly, Microsoft achieved dominance in the desktop software business. Microsoft licensed its software broadly to many computer manufacturers while Apple’s closed system brought the company to the brink of bankruptcy. Apple did eventually ease its grip on its products, and it licensed its operating system to several manufacturers. But it was too late. As Apple executive vice president Ian D. W. Diery told Newsweek in 1994, “If we had licensed earlier, we would be the Microsoft of today.”20
Jobs left Apple during these years, and when he returned as interim CEO, one of the first things he did was heal the breach with Microsoft. In his keynote address to the 1997 Macworld conference in Boston, Jobs painfully announced a new collaboration with Microsoft. The two companies had finally ended their intellectual property dispute, and Microsoft had agreed to purchase $150 million of Apple stock. When Jobs announced that Microsoft’s browser would come preinstalled on Macintosh computers, the crowd booed loudly. They did not want more Microsoft products infiltrating Apple’s machines. In complete control of his audience, however, Jobs next announced that rival browsers would be preinstalled as well, “because,” he said, “we believe in choice.” The last line was greeted with loud and prolonged laughter from the crowd. It was a punch line that resonated on many levels. Clearly, Microsoft was the behemoth of the industry, and Apple was the much less frequently exercised choice among computer buyers. “We believe in choice” meant that Jobs believed in offering consumers an alternative to Microsoft. Jobs’s line also invoked the Justice Department’s ongoing investigation into Microsoft’s anticompetitive decision not to preinstall the Netscape browser on computers running Windows; the DOJ would file its case against Microsoft the following year. But there was yet another uncomfortable truth embedded in Jobs’s phrase—one made clear by his smirk as he delivered the line: Jobs and Apple did not believe in choice. On the contrary, at the time, the company allowed its software to be used on only one brand of computer—Apple. And its hardware ran only one operating system—Apple’s. As soon as Jobs took the reigns of Apple, he canceled the short-lived licensing program, calling the Mac clone companies “leeches.” And he returned to the strategy of building a seamless, user-friendly closed system of hardware and software. In another conference keynote address years later, after Apple had introduced its iPhone and iPad, Jobs defended his vision of the closed system, explaining that, “It’s the complete solution.”21
After Jobs’s return to Apple, the company introduced a string of successful media products in addition to increasing its share of the desktop computer market. And it is no coincidence that the passage of the DMCA marks the turning point in Apple’s history. Jobs’s vision of a closed system fit perfectly with the anticircumvention provisions of the DMCA. In 2001, Apple released its first iPod music player with the slogan, “Rip, Mix, Burn.” Consumers were encouraged to “space shift” their music collection, copying their CDs and transferring the tracks to their iPods. Initial iPod sales were good, but they shot up more than five times in the year after Apple introduced the iTunes Music Store. The store allowed customers to purchase music and later music videos, television shows, movies, and mobile applications. The only catch is that the majority of the material was (and remains) locked behind Apple’s FairPlay copy protection software, which prevents files from being played on non-Apple products. As consumers began to build libraries of iTunes purchases, it became more and more difficult to switch to another online media store, whose content could not be played on an iPod, or to purchase a new media player, which could not play iTunes purchases. When Apple created a version of its iTunes software and store for Microsoft Windows, they promoted it with the slogan “Hell Froze Over,” mocking the company’s own reluctance to create products that interacted outside of the Apple universe. But iTunes for Windows was really a Trojan Horse—not a computer virus but a suspicious gift. iTunes may sit on Windows machines, but it only interacts with iPods and other Apple devices; it functions like a small Apple outpost on Windows computers. By 2004, Apple controlled more than 90 percent of the portable hard drive media market, making it very difficult for competitors, even Microsoft, to enter the field.22
In one sense, iTunes marks the success of the DMCA’s anticircumvention provision. Surely, media companies would have been much more reluctant to release their content on the internet without copy protection. But, at the same time, iTunes’ success points to the pitfalls of this approach. The DMCA gave Apple an unhealthy near-monopoly on the market. Not only has Apple’s copy protection locked competitors out of the market, it has also allowed Apple to dictate the terms of online media sales. Despite repeated attempts by music companies to introduce variable pricing, Apple was able to retain its 99-cent per song price until 2007. The 99-cent price may have been good for consumers, it may even have been the right price to sustain online music sales; but Apple’s ability to dictate pricing to the recording companies demonstrates the enormous power the company achieved in the media field in just a few short years. Many companies have pulled their music and videos from iTunes (or threatened to pull their content) in order to have some leverage with the primary outlet for online media. In an attempt to break free of Apple’s control, one music company, EMI, began to release music free of copy protection in 2007, a move that immediately allowed a second company, Amazon.com, to launch a successful music store where so many others had failed.
Before EMI announced its decision to sell music without copy protection, Steve Jobs surprised many by publishing a public letter delineating some of the by-then-well-known problems of copy protection: it encourages piracy; eventually it will always be hacked; and it only hurts the consumers who want to use their content legally—real criminals will always find ways around it. Perhaps these were Jobs’s personal feelings about copy protection. Perhaps he was showing sympathy for the many consumers who were frustrated by copy protection. Perhaps he was trying to take control of a decision that came from music companies, who all eventually followed suit and removed copy protection from their tracks. Whatever Jobs’s motivation, it is difficult to avoid the conclusion that his statement did not change Apple’s policy significantly. Copy protection has continued to be beneficial to Apple. All commercial video on iTunes and all of the mobile applications that it sells continue to have copy protection. And consumers who want to purchase commercial videos and applications for their iPods, iPhones, and iPads continue to find it very difficult to extricate themselves from iTunes or to use non-Apple devices.
Many former skeptics have now conceded that Apple’s closed system works well in the DMCA-governed mobile media market of the early twenty-first century. In 1998, Bill Gates told the reporter Robert X. Cringley that Steve Jobs “can’t win” as CEO of Apple; the challenge was too great. A decade later, however, Gates had to confess to another reporter that perhaps Apple’s closed system had been the best approach for the time. In a prominent Sunday New York Times article that accompanied the release of Apple’s iPad, technology writer Steven Johnson announced that the logic of computer innovation had changed. Like many others, Johnson had promoted an open environment for innovation on the internet, what Harvard law professor Jonathan Zitrain has called the “generative” environment of the early internet. But like Gates, Johnson’s view had also come full circle. He celebrated the innovation available through Apple’s mobile application store, which he called one of “the most carefully policed software platforms in history.”23
Apple’s closed-system approach has clearly succeeded where it failed before, and in May 2010, Apple’s market capitalization surpassed Microsoft’s for the first time.24 The DMCA ensured Apple’s success in several ways. It encouraged media company executives to release content to the iTunes store, secure in the knowledge that circumvention of copy protection was illegal. The DMCA also allowed Jobs and others in Apple’s management to sell media and portable media players, confident that competitors could not access their platform. This has led to much innovation in the burgeoning field of mobile software applications. But a severe price has been paid. As we have seen so many times before, the combination of copy protection and anticircumvention laws has normalized piracy. Even iTunes users with little technical knowledge have learned how to circumvent Apple’s FairPlay copy protection. And Apple’s closed mobile application store has led thousands of users around the world to “jailbreak” (break the encryption) on their iPhones, iPods, and iPads in order to run third-party software.25
In addition, too much of the innovation has been on Apple’s terms and confined to Apple’s proprietary platforms. Hundreds of thousands of mobile applications have been created for Apple products. Speakers, keyboards, chargers, and headphones of all kinds have been designed to be plugged into a proprietary Apple input jack. Apple has begun to have significant competition in the online and mobile media distribution business. It will take time to see if Google or Amazon can compete. But even if another competitor does emerge, Apple has been allowed to dominate digital media distribution for almost a decade and a half, largely because of the DMCA. As Edison had hoped, the legal enforcement of copy protection has allowed a single company to control the market, and Apple has commanded this market to a degree not even Edison could have imagined.
BUILDING A “SAFE HARBOR”
When Congress passed the DMCA in 1998, online video was an extremely limited field. Only one-quarter of U.S. homes had any internet access, and most were using dial-up connections, far too slow to download or stream videos. Large companies were hurriedly creating websites to serve as their front door in cyberspace. A few companies, like Fox, even used short low-resolution video clips on their websites. In the rare instances when video was available, however, download times could be measured in minutes of video downloaded per hour, and the clips were generally very short and of poor quality. These videos suggested the potential of the medium, rather than being useful themselves. Proving the point in a widely read 1995 essay, “What Is Digital Cinema?,” theorist and artist Lev Manovich likened QuickTime movies of the period to the short loops Edison presented on the kinetoscope. The video compression and formats that made instantaneous video streaming possible were still six or seven years off when legislators and studio lawyers were discussing the creation of the DMCA.26
By the late 1990s, another exciting development was taking place. Internet portal companies began to allow users to become their own publishers and eventually broadcasters. AOL (then America On-Line), Prodigy, and Yahoo! provided server space and tools for its customers to create “homepages.” Users posted information and photos about family activities, personal interests, or local organizations. These sites joined the user-generated sites that university faculty members and students had been posting on campus networks for decades. Online bulletin boards also allowed their members to upload and exchange information about science fiction, software development, or other topics. These were the seeds of what publisher and internet entrepreneur Tim O’Reilly would dub Web 2.0—i.e., the rise of websites that allow users to provide the content.27
User-generated sites were filled with copyrighted images, texts, and occasionally video that had been posted without permission. Most copyright owners waited to see how the net would develop, but a few historically protective organizations filed lawsuits to try to halt the circulation of their material. The Church of Scientology, Playboy magazine, and video game publisher Sega all sued bulletin board operators rather than attempt the arduous task of going after each individual uploader. In the Church of Scientology case, the court found that Netcom, a large bulletin board host based in the San Francisco Bay area, could not be held liable for the scattered infringing uploads that occurred on some of its servers. But in both the Playboy and Sega cases, judges decided that the defendants could be held liable for the high-volume trading of copyrighted material that occurred among their narrowly focused communities. These bulletin boards devoted to pornographic images and video games, respectively, seemed to be made for the illicit sharing of copyrighted material. But how could the courts or Congress differentiate between services that allowed users to post material in good faith and those that were built for piracy? Should the network operators be held at all responsible for the material that users uploaded? On one hand, it would have been extremely expensive and cumbersome for copyright owners to address each instance of copyright infringement with an individual lawsuit—a lesson that the recording industry soon learned. But on the other hand, the burden of monitoring every file uploaded to a server would have stopped the web 2.0 boom before it began, crippling services like AOL and Prodigy. This was one of the dilemmas that Congress faced when crafting the DMCA.28
There were civil liberties issues to consider as well. In the Scientology case, the church sued a former minister who was making the organization’s carefully guarded texts available online. The texts revealed some of the organization’s bizarre mythology, which many thought potential converts and critics had a right to see. The court dismissed any First Amendment issues in the case, but at least some members of Congress recognized that freedom of speech could be in jeopardy if hosting companies had to share in the responsibility for every item posted on the web. The Communications Decency Act of 1996 had already provided web hosts some protection from defamation and negligence claims. But what about material that infringed copyright law? Hollywood and other large content owners pushed to make web-hosting companies directly liable for infringement that took place on their networks. But film industry leaders were so intent on passing the anticircumvention measures that they eventually capitulated. Online video also seemed to be a pipe dream in 1998, and few media moguls could have predicted the popularity of websites like YouTube. When the DMCA negotiations finally ended, the safe harbor provision resembled the Scientology decision, and it shielded online service providers from becoming entangled in copyright disputes.29
Congressional leaders hailed this as a perfect commercial compromise. The DMCA would be a two-pronged stimulus for the U.S. economy. The ban on circumvention would encourage Hollywood studios and other content companies to make their libraries of material available online. And, at the same time, the safe harbor provision would encourage companies to build large websites and services that encouraged the free exchange of ideas. Speaking on the floor of the House of Representatives, Congressman Barney Frank joined many others to celebrate the fair balance they had struck. “What I am most happy about in this bill,” Frank said,
is I think we have hit about the right balance. We have hit a balance which fully protects intellectual property, which is essential to the creative life of America, to the quality of our life, because if we do not protect the creators, there will be less creation. But at the same time we have done this in a way that will not give to the people in the business of running the online service entities and running Internet, it will not give them either an incentive or an excuse to censor.30
The safe harbor provision, however, did not come without a few conditions. Service providers like Yahoo! and YouTube must follow proper procedures and act quickly in order to be protected from copyright lawsuits brought against users. If a user uploads a video to YouTube that contains copyrighted material, the copyright holder may send a “takedown” notice to YouTube. YouTube must then remove the video from its site and notify the user who originally uploaded it. If the uploader feels that the work is protected by fair use or otherwise unfairly accused of copyright infringement, he or she may send a “counternotice” to YouTube. The copyright owner then has fourteen days in which to file a lawsuit. After the fourteen days, YouTube may repost the infringing video. If a lawsuit does ensue, it is a matter to be settled between the copyright owner and the person who uploaded the video; YouTube stays above the fray.31
The safe harbor provision is, in many ways, an ingenious solution to the problem caused by the scale and democratic nature of Web 2.0 sites like YouTube, Flickr, and Wikipedia. The DMCA creates a kind of self-policing and grassroots arbitration system for the web. But the notice and takedown procedures can also be abused and manipulated. Copyright owners can be too quick to send takedown notices, and large media companies have been known to send them out by the tens or even hundreds of thousands. The system also requires both copyright owners and users to have some specialized knowledge in order to take advantage of the notice and takedown system. In this way, the safe harbor provision favors corporations and wealthier copyright holders and users who have access to legal counsel. There is, for example, no way to count the number of instances in which users did not repost perfectly legal videos because they were intimidated by the receipt of a takedown notice. In other ways, however, the DMCA empowers users and places large corporations at a disadvantage. Users may take risks online that they cannot take in other media. A video artist or journalist, for example, may post a video that pushes the boundaries of fair use, knowing that they are likely to receive a takedown notice before a copyright lawsuit is filed. On the other hand, meeting the demands of the DMCA has been onerous for large copyright holders or web-hosting corporations like Google. The DMCA requires a huge investment in human labor; large offices are now entirely devoted to scouring the web for infringing material and handling DMCA takedown notices and counternotices.
Unlike the anticircumvention provisions of the DMCA, the safe harbor provision was not the realization of a hundred-plus-year dream of media moguls. The safe harbor provision is genuinely novel in the relations it establishes between copyright holders and web users. The DMCA introduces a grassroots triage and arbitration system that invites copyright owners and users to solve their own problems before courts become involved. Still in its early stages of development, the safe harbor provision has, we will see, both preserved much of the old information economy that governed fair use and changed it in significant ways.
SOWING COPYRIGHT CONFUSION
If online video was in its gestational phase in 1998, it fully matured between 2004 and 2006. The combination of Adobe Flash Player’s efficient video-streaming formats and the penetration of fast broadband connections finally made video delivery over the internet feasible. Dozens of websites devoted to sharing video online began to appear, including Revver, Vimeo, Metacafe, Blip.tv, YouTube, Google Video, Veoh, and Yahoo! Video. In addition to technical advances, all of these sites depended on the safe harbor provision of the DMCA. YouTube alone was processing more than 65,000 uploads a day by the summer of 2006.32 That volume would have been very difficult to sustain if every video was subject to a copyright analysis by companies’ lawyers. This boom in video-sharing sites could not help but transform both film and television distribution and the communities that relied on fair use to make and distribute videos.
It is important to understand that YouTube did not start the culture of video sharing. This was not a case of “if you build it they will come.” In fact, as Henry Jenkins has demonstrated, the opposite is true. “The emergence of participatory cultures of all kinds over the past several decades,” Jenkins explains, “paved the way for the early embrace, quick adoption, and diverse use of such platforms…. If YouTube seems to have sprung up overnight, it is because so many groups were ready for something like YouTube.”33 Those groups include parents making home videos, documentary filmmakers, amateur comedians parodying music videos, television fans, video artists, and, apparently, anyone who happens to have recorded his or her pet looking knowingly into the camera. Other YouTube users flocked to the site to upload or view clips taken from television or commercial videos. It is not just that all of these communities preexisted YouTube, but their fair use conventions, as we saw in the previous chapter, had been worked out over decades as well. The fans, avant-garde artists, home video makers, and other fair use communities had spent decades learning when they should worry about attracting the attention of copyright holders. Fair use, after all, is built on a combination of conventions and legal precedent. Almost overnight, these long-established communities, each with their own individual relationship to mainstream media, were thrust into a completely new copyright environment. They all became subject to increased surveillance, and their cultures of fair use were homogenized as large media companies sought one-size-fits-all solutions to employing the DMCA to control copyright infringement.
The first group that Hollywood studios noticed were users who uploaded clips of South Park, the Daily Show, and other television shows and movies. A fascinating 2008 report from an American University team led by Peter Jaszi and Patricia Aufderheide outlines the many instances in which uploaded clips from commercial television and film may be protected by fair use. Brief clips might be used, for example, to start a conversation, or document a historic event.34 It is also clear, however, that in many instances users have posted excerpts of The Simpsons or The Matrix in violation of copyright simply to replace the commercial viewing experience. Regardless of their copyright status, film and television copyright owners have retained an ambivalent position about these clips. Even when the clips are clearly infringing, they may function effectively as free marketing. And media companies have taken a haphazard approach to addressing clips on video-sharing sites.
At first, video-sharing sites looked like the inevitable extension of Hollywood’s transmedia approach to storytelling and marketing. Sony bought the video-sharing site Grouper for $65 million, and media conglomerate Viacom lost frenzied bids to acquire both MySpace and YouTube. Hollywood franchises were reaching across media, and many producers had already found that YouTube brought new viewers to their films and videos. The Monty Python group, for instance (as mentioned in chapter 3), responded to users who posted Python clips by creating their own YouTube channel. The Pythons uploaded high-quality images and attached a plea for viewers to purchase DVDs if they liked the online videos. At least in the short term, this strategy worked. Sales of Python DVDs soared, and one of their films quickly surged to No. 2 on Amazon.com’s bestseller list. When the Saturday Night Live sketch “Lazy Sunday” became a viral hit on YouTube, NBC sent a takedown notice and made the clip available for free on its own network site and through iTunes. After losing YouTube to Google, Viacom became one of the largest opponents of video-sharing sites. But even as Viacom sent over 100,000 takedown notices and sued YouTube for $1 billion for copyright infringement, the company’s marketers employed third parties to upload clips of Viacom content to YouTube in order to stimulate interest in its projects. According to some reports, Viacom then sent takedown notices for the removal of clips that had been uploaded at the company’s own request. Legal and marketing departments have consistently clashed over the question of when to take down clips from commercial media, and they have left a wake of copyright confusion.35
YouTube addressed this issue by testing novel methods of partnering with media companies. NBC, CBS, Viacom, and every major music label have had on-again, off-again negotiations and agreements with YouTube to share revenue from ads displayed alongside the media companies’ content, even if a YouTube user and not the company itself uploaded the video. This arrangement had the potential to revolutionize fair use: not only did YouTube introduce a method for creators to be compensated when their work was reused, but, at least for short periods, media companies were willing to test the system. Revenue sharing allowed fans, home movie makers, artists, and others to use copyrighted material for free, while the original creators of the material were compensated for the use. Whether or not the so-called “second takers,” the amateur creators, should have been compensated for the revenue generated by their work is another issue. The media companies, however, have been skeptical of both the efficacy and the terms of these agreements. And negotiations over revenue sharing have resulted in very public disputes and mass takedown campaigns. It is certainly more than a coincidence that Viacom’s $1 billion lawsuit against YouTube followed on the heels of failed revenue-sharing negotiations.36
The result of users being caught in the middle of corporate deals has been the sowing of confusion about fair use practices. There may be important legal questions to answer, but as we have seen, the norms and practices that form the culture of fair use are even more important than the legal boundaries. And the mixed signals sent out by media companies have introduced confusion into fair use communities that had long-standing traditions of using copyrighted material.
TAKEDOWN CULTURE AND THE EFF
The confusion caused by shifting corporate policies is clearly just a stage in the development of a new platform for sharing online video. Corporate policies and the practices of fair use communities will no doubt come into alignment once again, even if the process takes decades. But in the meantime, the DMCA has already changed the everyday practice of video fair use. While large media corporations search for unified approache’s to managing online video, individual copyright owners and website users have attempted to use the DMCA to defend their personal claims. And one group, the nonprofit law firm and advocacy organization the Electronic Frontier Foundation (EFF), has been involved in many of the most prominent disputes. The EFF has arguably done more than any other organization to create precedents that replace the vagaries of the DMCA’s safe harbor provision with concrete guidelines.
Like the internet itself, the EFF was born from the meeting of engineers and the 1960s counterculture. In 1990, pioneering software designers Mitch Kapor and John Gilmore teamed up with Grateful Dead lyricist-turned-internet-evangelist John Perry Barlow to start the EFF. In the early years, the EFF fought landmark court battles that protected civil liberties in the digital age, as the organization continues to do. Since the passage of the DMCA, EFF staff—especially attorneys Wendy Seltzer, Fred von Lohmann, and Corynne McSherry—have also taken on many of the key cases that have shaped the use of the notice and takedown system.
In 2001, Wendy Seltzer brought some transparency to takedown practices when she organized a number of law school centers to found the Chilling Effects website. Ever since Supreme Court Justice William Brenan used the term in a 1965 decision, lawyers have commonly referred to the “chilling effects” created when a policy or court decision discourages free speech or innovation. The Chilling Effects website allows users to post takedown notices and cease-and-desist letters, exposing companies that abuse the system and bringing wider attention to the DMCA more generally. The site gained notoriety in 2002 when the Church of Scientology once again attempted to use the DMCA to silence its critics. The church began to send takedown notices to internet companies that linked to a site devoted to exposing the organization’s doctrines. Google acquiesced at first, removing the links. But when Google’s DMCA policy was challenged, the search company formed a new DMCA policy, and its management decided to repost the links. (No form of linking has ever been found to be a copyright infringement.) After the incident, Google began to submit all of its takedown notices to Chilling Effects, making the archive an incredibly valuable resource for scholars and anyone looking for data on takedown letters.37
The EFF’s largest impact on the use of the DMCA’s safe harbor provision has come from the organization’s willingness to serve as pro bono counsel to internet users who feel that they have been unfairly targeted by takedown notices. In this role, the EFF has defended home videographers, documentarians, parodists, and others who labored under the assumption that their work was protected by fair use. Although the EFF works for free, its clients still assume a significant financial risk by reposting their videos and opening themselves up to copyright infringement lawsuits. Statutory copyright damages in the United States range from $200 to $30,000 per work infringed; that number can go up to $150,000 if the infringement is willful. A simple fan mashup or a work of video art that each use ten clips from copyrighted films might lead to between $7,500 and $1.5 million in damages, plus attorney’s fees. As former EFF attorney Fred von Lohmann told a group of New York University Law School students and faculty members, when he takes on a new client who wants to send YouTube a counternotice, he has to inform them of the risks: “[There is a ]1 in 100 chance they [will] take your house … that intimidates a lot of clients.” So a decision to send a DMCA counternotice is rarely undertaken casually.38
Copyright infringement lawsuits have been used as a form of backdoor censorship since the eighteenth century, and DMCA takedown notices are no exception. The Church of Scientology may have pioneered the use of takedown notices to silence critics, but many copyright owners followed in their footsteps. In 2007, for instance, “paranormalist” Uri Geller sent a takedown notice to YouTube. Geller rose to fame in the 1970s for his apparent ability to bend spoons and perform other psychokinetic acts. Over the years, Geller has attracted criticism from Johnny Carson and Canadian magician James Randi, who have attempted to debunk Geller’s claims about his paranormal abilities. When a small Pennsylvania group posted part of a PBS NOVA documentary featuring both Carson and Randi criticizing Geller, Geller’s lawyers had it taken down. Geller’s company claimed to own eight seconds of the 13-minute video clip that had been posted. The short clip was used to establish context, and it seemed like a clear case of fair use. But that did not stop Geller from reacting quickly to protect his reputation. (I should mention at this point that I was asked by the EFF to serve as an expert witness in this case, although the case was resolved before I had a chance to make a statement on the record.) With the help of EFF, Brian Sapient, who had posted the video, filed a declaratory judgment case, asking a court to decide if Geller’s takedown notice was valid. Geller’s company, Explorologist Limited, filed a countersuit claiming that the video violated his copyright in the clip. It was a complicated case, with multiple complaints filed in different circuits. Geller’s lawyers further muddied the waters by questioning the jurisdiction. Did the infringement occur where the file was uploaded, where the server sat, or where Geller viewed it? Was the case subject to U.S. fair use law or U.K. fair dealing law, since Geller held a U.K. copyright in the work. Increasingly, Sapient realized that it would take a long time to resolve the dispute, and Sapient and Geller settled the case out of court. Geller freely licensed the clip in question to Sapient; that way Geller did not have to concede that his copyright claims were specious. And the video could remain on YouTube. It is clear, however, that without the intervention of the EFF, Brian Sapient would not have reposted his video. The complications of the DMCA’s notice and takedown provisions and the expense of launching a legal defense against a wealthy and dogged copyright holder would have taken more than Sapient’s or his small organization’s resources. Without the EFF, in other words, Geller would have been able to wield his takedown notice very effectively to censor criticism of his alleged abilities.39
The Uri Geller case is just one example of the many instances in which the EFF has helped to defend critics from large copyright holders including Viacom, the producers of (the purple dinosaur) Barney & Friends, and the Universal Music Group. In some instances, these were “dolphins caught in the net” (a metaphor often used by EFF attorneys) of large takedown purges. In many other instances, however, copyright holders have clearly used the DMCA to suppress unwanted criticism. The use of takedown notices to silence political speech has been particularly troubling. As Siva Vaidhyanathan pithily explains, “YouTube is where politics and culture happen online.” Increasingly, politicians use YouTube to reach voters and constituents, and the notice and takedown procedures have become central to political contests. When Representative Heather Wilson of New Mexico was running for reelection in 2006, for example, reports began to surface claiming that she had illegally disposed of a police report. The report in question documented her husband’s alleged inappropriate involvement with a minor. A blogger posted a clip to YouTube from a news program that showed the candidate discussing the allegations. But the television station that owned the footage quickly had it removed, and voters were denied an important political document.40
In the 2008 presidential race, the campaigns of candidates Barack Obama and John McCain posted dozens of videos to YouTube. Many of these videos used copyrighted news footage and other material to respond to criticism or to present a platform. But, like many other videos that incorporate copyrighted material, some of these videos disappeared soon after they were uploaded—the victims of takedown notices. CBS, NBC, Fox News, and the Christian Broadcasting Network all sent takedown notices to have Obama and McCain campaign advertisements and videos taken down. With less than one month left in the election, the McCain campaign had finally had enough. The campaign’s general counsel wrote to YouTube imploring the company to ignore the notices and leave the videos up. “[O]verreaching copyright claims,” the letter read, “have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech.” The letter went on to complain that the two weeks it took to have videos reposted “can be a lifetime in a political campaign.”41
Wired magazine and other news outlets delighted in the spectacle of Senator John McCain complaining about the law he had voted for ten years earlier.42 But the McCain letter targeted the “overreaching copyright claims” of large media companies as well as the DMCA. The problem was the abuse of the system and not necessarily the system itself, although the safe harbor provision may just be too easily abused. YouTube could not ignore the takedown letters, as the McCain campaign suggested. To do so would be to share the liability in potential copyright infringement disputes. Fair use is too unpredictable and the financial damages are too large for YouTube or any large public company to assume that risk. And if YouTube did assume the risk for presidential campaign videos, how could the company refuse to do the same for all of the amateur video work being taken down every day?
In 2007, EFF filed another lawsuit that promises to curb some of the abuses of the notice and takedown system. When Universal Music Group (UMG) had Stephanie Lenz’s video taken down from YouTube, the media conglomerate’s takedown notice did not “even pass the laugh test,” according to EFF attorney Corynne McSherry. Lenz’s 29-second home movie showed her two children running around the family’s kitchen. If you are told to listen for it very carefully, you can hear the Prince song “Let’s Go Crazy” playing faintly in the background. At one point, a toddler bends his knees a few times, presumably dancing to the music. If this were a major Hollywood film, Lenz would have needed a synchronization license, even for the short excerpt of the music. But because it is a home movie, the brief, incidental recording of the music is very clearly a fair use. The use of the music had been entirely transformed, and no one would listen to the clip in place of buying the album. In fact, if it were not for Universal’s takedown notice, only a handful of family members and friends would ever have seen the clip or heard the music. But like so many campaigns to censor creative works, the attempt to remove the video only brought it more attention. Lenz’s clip has now been viewed well over one million times on YouTube.43
EFF and Lenz sued UMG for violating the safe harbor provision of the DMCA. Lenz relied on a little-used subsection of the DMCA’s safe harbor provision to claim that the music company dishonestly sent the takedown notice, knowing that the video was protected by fair use. UMG, of course, claimed that they did not (and could not) know for certain if the video is protected by fair use. In most instances, UMG would be right. But the EFF chose to champion a potent example of copyright owners’ overreaching, and UMG chose a poor example to defend. At the time of this writing, the case is waiting for a decision by an appeals court, but in a milestone opinion the district court that first heard the case held that UMG and other copyright owners must consider fair use before sending a DMCA takedown notice. If that decision is allowed to stand, it has the potential to put large media companies on the defensive. They will have to factor fair use more directly into their systems for sending takedown notices. If political advertisements, home videos, and amateur remixed videos are taken down in giant sweeps, UMG, Viacom, and other companies will expose themselves to thousands of lawsuits, like Lenz’s, that require the companies to pay damages and possibly legal fees as well. This would clearly be a victory for filmmakers who rely on fair use. As MPAA antipiracy litigator and sometimes blogger and journalist Ben Sheffner suggests, a Lenz victory might be good for the studios too: “If copyright protection … becomes identified with targeting home videos of dancing babies, congressional support for the entertainment industry will inevitably suffer, and it’s the real pirates who will benefit.”44
It may be surprising that amateur creators and a few lone copyright bullies have brought most of the copyright suits involving individuals using video-sharing sites. One might be led to think that the DMCA is working effectively, that media executives are content to have infringing work taken down without prosecuting the infringers. But in fact, media company executives and legal departments have left individual cases of infringement alone, because they are going after bigger fish: the companies that own the websites and networks.
Executives at media conglomerates never fully accepted the safe harbor provisions of the DMCA. Even after the passage of the DMCA, Hollywood studios, music producers, and other content companies fought to have service providers held responsible for copyright infringement that occurs on the web. A string of lawsuits questioned companies’ rights to receive safe harbor protection. In one of the first such cases, litigious science fiction writer Harlan Ellison pursued AOL for years because the company changed the e-mail address for the receipt of takedown notices without sufficient notification to users. Ellison and AOL eventually settled out of court, but the case was a warning to other web hosts to follow their DMCA obligations to the letter. A handful of subsequent cases questioned the DMCA protection afforded to video-sharing sites Grouper, Bold, Veoh, and YouTube. In all of these cases, media companies claimed that the websites promoted infringement. But all of the sites followed DMCA protocol carefully, and they all pursued legitimate paths. Veoh, for instance, banned pornography, cut deals with most major TV networks, and received venture capital funds from Hollywood insiders. Veoh also took its legal responsibilities seriously, and courts continually agreed that Veoh complied with the terms of the DMCA. But the expense of the lawsuits eventually drove Veoh to declare bankruptcy (it was later bought by an Israeli technology company). These and other cases have brought some clarification to the DMCA’s safe harbor provision. As long as employees do not have specific knowledge that infringing material is being posted and the company does not profit directly from the infringing material, video-sharing sites remain free to develop their networks.45
Not surprisingly, YouTube has been subject to the most substantial legal attacks on its service. When Google purchased YouTube in 2006, the company wisely put aside a large legal defense fund. Even before Google’s purchase, Los Angeles cameraman Robert Tur sued YouTube, and in February 2007 media giant Viacom filed a lawsuit against YouTube as well. The lawsuits against YouTube brought out some surprising details. YouTube cofounder Jawed Karim appears to have uploaded infringing videos himself, and another YouTube employee allegedly referred to the site as “video Grokster,” comparing it to the peer-to-peer file-sharing service the Supreme Court found to “induce” its users to share illegal content. In the first round of the case, however, a New York district court handed YouTube a decisive victory, upholding their compliance with the DMCA. It is likely that the case will be heard again on appeal, but it is also clear that web 2.0 companies that act in good faith will continue to be protected from copyright infringement suits.46
Like the Sony Betamax case, Viacom’s suit against Google appears to be the personal vendetta of a few company executives. The other major studios and conglomerates have not joined the suit. As they have done continually throughout the history of Hollywood, when media companies were unhappy with Congress’s and courts’ solutions, they found a third way. Viacom itself seems to be pursuing alternate solutions even as the company exerts legal pressure on YouTube. Tellingly, Viacom’s complaint against YouTube covered only the period before May 2008. What happened in May 2008? Viacom signed up for YouTube’s content ID system. Faced with pressure from media companies, YouTube developed a system that identifies copyrighted material and allows media companies to profit from its site. YouTube first used an audio-only identification system, designed by the company Audible Magic for Napster. The original incarnation of Napster, however, closed before the company could ever test the software. Sometime around the summer of 2007, YouTube began testing a video tool as well. When media companies sign up for YouTube’s content ID system, they upload their content to YouTube’s servers. YouTube then creates a digital “fingerprint” (musical excerpt or video frames) from the material. The content ID system can use these fingerprints to begin to look for matches on the website. If a match is found, copyright owners may choose from three options. They may share advertising revenue for videos that contain its copyrighted material; they may block the videos or have the audio track muted (if it is the music that is potentially infringing); or the media companies may gain access to the analytic data about the video that YouTube collects. Using YouTube’s automated system, users may dispute the blocking or muting of their video if they think it is unfair. Media companies have not always been entirely happy with the terms of the content ID revenue-sharing system, and they have continued to haggle with YouTube. Viacom’s lawsuit may have even begun as an attempt to gain more leverage in negotiations. But although the details are still being worked out, media companies and YouTube have found a technological fix to a dilemma they could not remedy through legal action.47
Fair use has been a noticeable casualty of YouTube’s content ID system in the past. When the Warner Music Group changed its settings so that for nine months every video with Warner-identified music was muted, many obviously noninfringing videos were taken down without consideration. The Lenz case may make this kind of blanket policy impossible. The larger question remains, however, whether any automated system can ever factor fair use into the equation. The answer is ultimately no. Fair use is a dynamic doctrine perpetually in the process of development. No formula can ever determine fair use. But computer algorithms can be tweaked to separate out the videos most likely to fall into the fair use camp. In 2007, Disney, Fox, Sony, Microsoft, Veoh, CBS, and several other companies released a set of “Principles for User Generated Content Services.” The document basically called on all web 2.0 companies to employ some form of content-identification technology or “filtering.” The EFF joined with legal scholars at Harvard, American University, the American Civil Liberties Union, the pubic interest organization Public Knowledge, and others to respond with a list of “Fair Use Principles for User Generated Video Content.” The latter document proposed several ingenious methods for building fair use into a computer algorithm. The fair use principles suggest that a video be removed only if “the audio track matches the audio track of that same copyrighted work,” and “nearly the entirety (e.g., 90 percent or more) of the challenged content is comprised of a single copyrighted work.” These corrections would help to accommodate a number of common genres of user-generated videos. If, for example, a user posted an entire unedited music video, the video would quickly be blocked. But if the user posted an entire music video with a parody soundtrack, the video would stay up. One popular (and hilarious) example of these videos are the so-called literal videos—videos in which creators replace the original lyrics of a song with lyrics that describe what is happening in the often nonsensical video-image track. To take another example: if a user uploaded an entire episode of the Daily Show, it would be taken down. But if the user simply used clips from the Daily Show in a compilation that included clips from Fox News and a movie or two, that video would remain up. Humans will always be more incisive fair use detectors than computers. But technical solutions can be used as a kind of triage to narrow the task of separating piracy from fair use, a task that has reached a scale beyond the reasonable ability of humans to monitor.48
Media copyright in the digital age has been characterized by both a fear of and faith in technology. For all of the time that Hollywood executives, lobbyists, and lawyers have spent railing against perfect digital copies and the ease of online distribution, they have also looked for technical solutions. Since the passage of the DMCA, the Motion Picture Association of America has continually lobbied to extend anticircumvention laws even further. And the studios have embraced filtering and automated content ID systems as a method of managing user-posted online videos.
These technologies have fundamentally changed the way that copyright and fair use are managed. But they also provide many continuities with the history that we have been examining throughout this book. First, technological means of managing copyright are clearly an extension of movie moguls’ century-old fantasy of controlling intellectual property without the intervention of legislation or litigation. As studio leaders learned to control authorship though guilds and contracts and as they learned to control fair use through licensing and communication tactics, they now hope to preempt legal intervention by controlling digital media through technological means. Second, for all of its promise of complete control, technological management of copyright cannot upset the balance between copyright holders on the one hand and users and new creators on the other. Since the days of Edison, we have seen, overly aggressive technological controls have alienated customers and driven them to piracy. Digital locks and content filters must be used carefully in order to maintain any effective influence and authority. Technology may have altered the everyday administration of copyright, but the fundamental principles that allow the system to function remain remarkably unchanged.
