The Copyright Fog
CREWS, KENNETH D.
The Copyright Fog The Public Domain: Enclosing the Commons of the Mind By James Boyle Yale. 315 pp. $28.50. Reviewed by Kenneth D. Crews Director, Copyright Advisory Office, Columbia...
...But eventually Congress began to phase out the notice requirement, and in March 1989 it did away with the mandate altogether...
...The core of the problem is the reach of the copyright law...
...Reviewed by Kenneth D. Crews Director, Copyright Advisory Office, Columbia University DEBATES ABOUT the protection of intellectual property (IP) have become increasingly complex with the advancement of communications technology...
...If that was omitted, the work entered the public domain...
...As a result, we have what I would call a Copyright Threat...
...the rights must be limited...
...IP protection should not protect all innovation...
...The relatively new bar on circumventing technological protections, by contrast, leaves little wiggle room...
...Watching a movie, for example, may be perfectly lawful, but if your computer is running the wrong platform or your DVD player is embedded with the wrong regional code, software on the movie disk will prevent your spending a relaxing evening taking in a film at home...
...To show how the law has become excessive, Boyle turns to the tale of the commons, in which the common land needs to be regulated to prevent hasty overgrazing by the first herd of farm animals to arrive...
...Boyle calls attention to the "Internet Threat"—the potential for easy and widespread infringement...
...the dangers of monopoly must be avoided...
...Congress may have spent two centuries calibrating copyright law, but the Digital Millennium Copyright Act of 1998 put up a high-tech fence that nullifies the social bargain of owners' and users' rights...
...The allegory has been invoked frequently to make plain what IP is not...
...Then came computers, the Internet, scanners, flash drives, and the roster of devices and toys that line the shelves of electronics stores...
...The more important threat is Congress' ill-conceived copyright revisions...
...Fair use dates back to the early 19th century...
...Boyle sees this as placing an essential copyright aspect at risk...
...One of the most refreshing aspects of The Public Domain, however, is its evenhanded treatment of counterarguments...
...Yet it also contributes to the flexibility of fair use and other copyright exceptions that he rightly feels are vital to encouraging innovation...
...The more serious challenge, however, is the copyright fog that hangs over the universe of information owners and users...
...Jefferson raises factual questions about the scope of the invention, and he cautions against patents that overreach their purposes...
...Convince he does...
...The "Internet Threat" grabbed attention in the late 1990s and Congress reshaped the law in ways that have constrained reasonable use of copyrighted works...
...Today we are all copyright owners, copyright users, and probably copyright infringers...
...no one is entitled to IP...
...Originally it applied exclusively to a “published” work carrying a meticulously proper notice...
...Automatically we were all holders of sweeping Federal rights...
...He recognizes that protecting IP can encourage research and innovation—though not in every instance...
...Instant protection, he thus demonstrates, compels you to deliberately risk infringement or “waste time and effort in trying to figure out a way of getting around a system” that serves “neither your needs nor the needs of many of the people whose work you want to use...
...The copyright law has been an American fixture since 1790, but not until the 1990s was it relevant to virtually everyone...
...In the past there had been an occasional ebbing, and he is clearly trying to restore the pattern...
...He explains that patents are not always essential for encouraging creativity, and that sometimes "these monopolies produce more embarrassment than advantage to society...
...What troubles him is that the overall flow of the law has been to grant greater and longer rights...
...Rooted in automatic protection without requirement of a notice, it has discouraged creative uses and allowed even unidentified owners to block progress...
...In his final pages, Boyle eloquently tells us why we should care: "Good intellectual property policy will not save our culture...
...In the process he graciously guides the reader through issues that now demand greater public awareness...
...If you tinker with the machine or disk, usually a technologically easy task, you may be guilty of "circumvention...
...Boyle exposes its basic defects...
...Recent court rulings have permitted reasonable uses of copyrighted works for such purposes as parody or software decompiling...
...Over the last decade we have constantly been creating new works with immediate copyright protection, but we have also been finding and using copyrighted material galore from around the world...
...Have you ever loaded a song onto an iPod or downloaded a document from the Internet...
...Copyrighted books and music can be "consumed" and another printing can be ordered to meet demand...
...Today we are capable of much more, and copyright law should be a nurturing intermediary...
...This included every scribble, snapshot and postcard home from vacation...
...But bad policy may lock up our cultural heritage unnecessarily, leave it to molder in libraries, forbid citizens to digitize it, even though the vast majority of it will never be available publicly and no copyright owner can be found...
...When making copies was prohibitive, their shelves were an acceptable paragon of preservation and access...
...To a copyright lawyer, a work is in the public domain if it lacks copyright protection...
...Congratulations, Congress seemed to say, we have bestowed upon all comers the gift of copyright protection...
...But he is not writing about duration and expiration, or materials that never had protection...
...Rather, his title is a metaphor for a freedom he believes is in danger: The demise of the commons precludes access to the past and denies cultivation of the future...
...Even in the bygone eras of pencils and piano rolls, copyright was always about the interplay between rights and available technology...
...In his new book James Boyle, professor of law at Duke University, offers a polemic-free approach to a fracas often defined by hostile entrenchment...
...he is looking for a new treatment of rights...
...I hope to convince you of the importance of the Jefferson Warning," Boyle writes, adding that the views of Jefferson and others "are important because they encapsulate neatly an important series of truths about intellectual property...
...Sometimes even the author is persuaded by them...
...Copyrights are not consumed in a competitive spirit, like the rush to graze open land...
...The law leaves you open to jail time...
...A letter he wrote in 1813, critiquing a patent issued to Oliver Evans for his improvement on mill machinery, is one of the few bits of insight about intellectual property that we have from a Founder...
...At the same time, fair use rulings have been comparatively stingy in the case of music sampling...
...Most notoriously, the downloading of music has been emblematic of the clash between owners and users...
...BOYLE begins his illuminating volume with IP examples that border on the absurd or are plain mad...
...Its exact parameters are indeed obscure...
...Which brings me to Boyle's title, The Public Domain...
...Although I happen to like moldering libraries, they are no longer good enough...
...To buttress his central thesis that the copyright law simply does not function as intended, Boyle cites Thomas Jefferson...
...Boyle's sharpest attacks target two traits of the copyright law: the vagaries of fair use, and prohibiting the circumvention of technological protection systems...
...He is not anticopyright or antipatent...
...The letter prompts Boyle to formulate what he cleverly calls the "Jefferson Warning," a five-part doctrine that in essence says: Intellectual property should not be regarded as comparable to tangible property...
...The law's reach has gone far beyond its basic objectives, leaving us inhibited and conflicted as we struggle to be honest citizens...
Vol. 91 • November 2008 • No. 6
