“COPYRIGHT LOBBYING is not a sport for amateurs,” proclaimed legal scholar Jessica Litman after the passage of the 1998 Digital Millennium Copyright Act (DMCA). Litman neatly and accurately summarized the previous 300 years of copyright history.1 But things have changed since 1998. The internet has brought amateurs into the process of policymaking in important ways. First, it has greatly expanded the range of creators and consumers who have a direct stake in copyright law. Amateur video artists who uploaded their movies to YouTube, college students who receive “settlement letters” from movie studios, and early adopters of new video technology feel the impact of copyright law every day. And many of them now regularly follow copyright policymaking as well. The web has also allowed these creators and consumers to form grassroots activist communities, and a copyright reform movement has grown up in conjunction with larger media and political reform movements. Blogs, social networks, open government initiatives, and a series of organizations have kept different constituencies informed and vocal about copyright policy. And amateurs have begun to tip the balance in the copyright wars.
The DMCA and the Copyright Term Extension Act (CTEA, also passed in 1998) were forged like all of the copyright policies that had preceded them. Representatives from powerful organizations negotiated the details largely under the radar of the mainstream press or the public. Leading up to 1998, Hollywood studios, talent guilds, telecommunications companies, and consumer technology organizations all offered congressional testimony and research reports to support their visions for new legislation. Executives from many of these companies also made strategically placed contributions to the campaigns of members of Congress.2 Technology and content companies represented competing positions, to be sure, and there was a certain kind of balance to the system. But they all sought to expand the powers of corporate interests, and a wide range of consumers and creators were left out of the conversation.
Public interest organizations were not entirely absent from the debates, but their lobbying efforts proved to be all but ineffective. Library organizations, for example, had been active in the policy process for decades, and their staff and outside counsel participated in the hearings and debates that preceded the 1998 expansion of the Copyright Act. But with the exception of a small exemption to the DMCA that library groups neither asked for nor wanted, the libraries failed to exert any influence over the final bills. Legal scholar Peter Jaszi founded a younger organization, the Digital Future Coalition, in 1995, and it brought together an impressive list of aligned educational, nonprofit, and some commercial organizations. The coalition may have been ahead of its time, however. Underfunded and without the support of a mature blogosphere and a network for disseminating information, the Digital Future Coalition also failed to exert any significant influence over the final bills.3 The more established Electronic Frontier Foundation and the relatively young blogs Slashdot and Boing Boing also kept their constituencies informed about developments in the major changes coming to copyright law. But their audiences were still too small and specialized, and none of these groups gained traction in the policymaking process.
Just a few years later, however, online blogs and social networking sites helped transform the web into a new engine for the organization of grassroots political movements. The 1999 Seattle protests against the World Trade Organization catalyzed a new era of liberal activism. The “Battle in Seattle” was followed quickly by the controversial election of President George W. Bush, the war in Afghanistan after the September 11th attacks, and later the war in Iraq. Organizations like Moveon.org and Meetup.com facilitated large-scale protests and letter-writing campaigns, and they have helped to raise millions of dollars for political campaigns. During the 2004 presidential election primary season, candidate Howard Dean and his campaign manager Joe Trippi proved that the internet could be used to attract the participation of significant numbers of voters, many of whom had no history of political involvement.4
Discussion of media reform existed on the periphery of this movement, with organizations and blogs focused on issues like media bias and the concentration of media ownership. Communications scholar Robert McChesney had been pushing for organized media reform in the United States for years in books, journal articles, and the popular press. McChesney and his frequent coauthor John Nichols railed against the “relentless lobbying from big-business interests that have won explicit government policies and subsidies permitting them to scrap public-interest obligations and increase commercialization and conglomeration.”5 Eventually, they would come to list the growing scope and length of copyright monopolies among the policies that subsidized big media companies. In 2002, McChesney, Nichols, and Josh Silver cofounded the organization Free Press with the goal of reorienting U.S. media policy to serve the public interest. The timing was perfect. Just months after the organization’ s website went live, the Federal Communications Commission decided to relax its media ownership rules. The commission made it easier for individual companies to own more media outlets in a local area, among other changes. With the help of Free Press, the Media Access Project, and other organizations, the news and implications of what could have been an obscure policy event spread quickly. The outcry over the FCC’s new rule (which was eventually overturned in court) catapulted the one-year-old media reform organization to national prominence. Free Press recruited over 1,700 participants to its first media reform conference in Madison, Wisconsin, that year, and its membership has since swelled to over 500,000 people.6 Free Press succeeded where many earlier organizations had faltered, because of the infrastructure provided by the network for online grassroots activism (or netroots).
A copyright reform movement evolved both independently and in conjunction with this larger netroots culture. Much of the development happened within universities. Publications by legal scholar Lawrence Lessig and media scholar Siva Vaidhyanathan in the early 2000s laid bare the cultural dimensions of copyright law for students and nonspecialists.7 Their books were adopted for use in political science and media studies courses, and they introduced a wide variety of students and other readers to the history and impact of copyright law. With copies of Lessig’s books under their arms, students followed new policy and court battles. They followed the Napster case and debated piracy and file sharing in their dorm rooms. At one high-water mark, they followed Lessig’s court challenge to the extension of copyright term limits enacted by the Copyright Term Extension Act. Lessig lost the case, Eldred v. Ashcroft, when the Supreme Court decided it in 2003, but it drew new attention to the conjunction of media monopolies and copyright. The CTEA was also colloquially known as the Mickey Mouse CTEA, because copyright terms always seem to be extended just as early Disney cartoons are about to enter the public domain. The case reminded the growing reform movement of the power of large corporations like Disney to influence copyright law. Coming at the same time as challenges to the FCC’s new ownership rules, the message about corporations’ growing copyright monopoly brought many new converts to the copyright reform movement.
Eldred v. Ashcroft also drew attention to the plethora of new voices on campuses that joined in the debate. Scholars from across the curriculum—economists, historians, and art historians—all filed friend-of-the-court briefs in the case. And that same year, students at Swarthmore College began FreeCulture.org, picking up on a phrase Lessig used often in speeches and that would become the title of his 2004 book. The students intentionally styled themselves as sixties radicals. Within a year, they renamed the group Students for a Free Culture, with echoes of Students for a Democratic Society, and they had chapters on campuses across the county (fig. 6.1). To celebrate their one-year anniversary, the group held their first annual conference at Swarthmore. Students from across the country converged on the Swarthmore campus for a kind of policy-wonk Woodstock. Two students showed a documentary intercutting footage of copyright activists outside of a Virgin megastore in Times Square with 1960s civil rights marches. And Lessig headlined with a dazzling multimedia presentation. Wired magazine has called Lessig the “Elvis of cyberlaw,” because of his celebrity. But he turned out to be more like the Dylan of the copyright reform movement. After providing four classic books on the subject, Lessig left copyright reform to pick up his electric guitar and pursue the issue of money’s corrupting influence on the political process. Lessig took on this larger framing issue, and he joined the parent movement of copyright reform. He spoke at the Free Press’s annual conference; he coauthored an op-ed column with McChesney; and he teamed up with former campaign manager Joe Trippi to found a new organization, Change Congress.
Elsewhere on campuses, law schools began to adopt a more hands-on approach to copyright. Intellectual property clinics popped up at law schools across the country. Law students supervised by faculty members at American University, Stanford, Berkeley, and many other universities began to represent a wide range of critics, artists, and educators who might otherwise not have had access to legal help. The clinics took on major cases against Warner Bros., the James Joyce estate, and the recording labels. But perhaps more important, they have worked with librarians, artists, and others to help them participate in government rulemakings and requests for comments. When, for example, the Copyright Office asked for comments on the problem of orphan works—works still in copyright but for which a copyright holder cannot be located—hundreds of comments were filed, many with the help of clinic students. The public comments influenced the drafting of orphan works legislation in both the House of Representatives and the Senate, although a final bill was never passed.8
FIGURE 6.1 A member of the Free Culture student organization protesting copy protection on music and movies. (Photo: Fred Benenson, used under a Creative Commons Attribution License)
Both inside and outside of universities, a series of new organizations took advantage of the internet’s ability to form activist communities. The copyright policymaking process had frustrated the American Library Association for a long time. But after the passage of the DMCA, they created a polished new website that allowed their members to quickly learn about policy issues affecting libraries and to reach out to their representatives with a few clicks of a mouse. In 2001 the ALA was joined by two influential organizations: the Washington, D.C.-based public interest lobbying firm Public Knowledge and the San Francisco-based Creative Commons. Public Knowledge quickly became a hub of information about copyright and telecommunications policy through its blog, podcast, newsletter, and explanatory internet videos. And its cofounder Gigi Sohn tirelessly testifies before Congress about a myriad of issues and works behind the scenes to inform congressional staffers about how new policies will affect consumers.
Creative Commons gives out free licenses that artists, bloggers, and others can attach to their work in order to give away some of the rights that the Copyright Act automatically grants them. A filmmaker, for example, may decide to attach a Creative Commons license to her work, allowing others to show it in not-for-profit settings and increasing the film’s audience. Or a musician might use a Creative Commons license to allow other musicians to make their own remixes of his original compositions, facilitating a creative exchange that can be stifled by copyright law. Creative Commons licenses took off quickly. By 2003, over a million websites used the organization’s licenses, and by 2009 there were more than 350 million Creative Commons licenses in over fifty countries. The Creative Commons’ metrics not only measure the success of the organization, they also measure the spread of copyright awareness and, for the most part, the growth of sharing communities. In one notable exception, media scholar Bingchun Meng has shown that, in China, Creative Commons licenses are often attached to blogs and other sites to claim rather than release specific rights. Whether the licenses are used to claim or relinquish rights, however, their prevalence is a clear indication of the growing importance and prominence of copyright law to the lives of amateur creators.9
In addition to Public Knowledge and the Creative Commons, the Electronic Frontier Foundation has maintained its role as a leading advocate for consumer rights and the public interest. And other organizations like the Center for Social Media, the Project on Information Justice and Intellectual Property (both housed at American University), and the Organization for Transformative Works have reached out to communities that depend on fair use. These organizations have worked to educate creators, scholars, and archivists.
This netroots infrastructure has proven to be an important corrective to the backroom policymaking of the past. Every new intellectual property bill that appears on a House of Representatives or Senate committee’s docket now receives an Electronic Frontier Foundation blog post or a Free Press article. The Motion Picture Association of America’s statements about piracy’s damage to the movie industry are countered with studies demonstrating the value of fair use to the U.S. economy. When the Federal Communications Commission adopted a rule giving movie studios more control over the devices that could play their content, Public Knowledge and other organizations led a successful charge to have the rule overturned in court. When Hollywood studios and other big content companies attempted to negotiate a new transnational agreement in secret, the copyright reform movement successfully demanded the release of the sealed documents and a more transparent negotiating process. It is not just the activists who support more generous copyright policies that have taken advantage of information networks. Many artists who want longer copyright terms and tighter restrictions have organized as well. Some of the strongest opposition to the orphan works bill, for example, came from commercial photographers, who worried that the legislation would cut into their ability to exploit their copyrighted works. Netroots has brought a wide range of new communities of creators and consumers into the debate over copyright policy.
In the short term, all of these new voices have led to a stalemate. Copyright reform activists on both sides of the issues have been successful at blocking or overturning unwanted legislation, but they have been less successful at pushing new policies through Congress. With so much public scrutiny and with one party or another invariably opposed to any new piece of legislation, the gears of copyright policymaking have slowed down.10 But this is just one phase of a system in transition. More of the constituencies affected by copyright law are now represented at the negotiating table, and there is greater transparency in the policymaking process. In the long run, the inclusion of more stakeholders will inevitably lead to better policies and a more perfectly balanced copyright system. The future of copyright is surprisingly bright.