A Commitment to Candid Speech:

Around 1995, there were a bunch of things that “we all knew” about copyright and cyberspace. Cyberspace would be the death of copyright. In a world with perfect and free digital copies, the ability of law to chase bits was hopeless. The ability of bits to flow freely was unlimited. Once a digital work was posted to the Internet, the cat was out of the bag. There was no way to protect subsequent redistribution. Copyright was dead; long live copyright.

Around 1995, there were a bunch of things that “we all knew” about copyright and cyberspace. Cyberspace would be the death of copyright. In a world with perfect and free digital copies, the ability of law to chase bits was hopeless. The ability of bits to flow freely was unlimited. Once a digital work was posted to the Internet, the cat was out of the bag. There was no way to protect subsequent redistribution. Copyright was dead; long live copyright.

Opponents of copyright loved all this. They started preaching to artists that artists should find a “different business model.” Sell tee shirts, not CDs. Give lunchtime lectures to the local Kiwanis, or conferences sponsored by Forbes. But don’t think that your money would be made by controlling the copies of your work. For control was no more. The Net had made it so.

But copyright holders didn’t like this preaching. They were terrified about the world that cyberspace would create. And so they raced to Congress to beg for help.

Congress responded by passing a scad of legislation designed to save copyright from cyberspace. Tough
new criminal penalties
for copyright violation were enacted; the term of existing copyrights was extended
by 20 years
(Mickey was safe!); and an experiment in a new way to protect copyrighted material—by banning tools used to circumvent code designed to protect copyright—was ratified.

This experiment—the anticircumvention
of the Digital
Millennium Copyright Act
—made it a crime to crack technological protection systems designed to protect copyrighted material. When copyright holders realized that law alone was hopeless, they raced to code-writers to get them to craft software to supplement the law.

“Trusted systems” and the like would lock up copyrighted material, making it harder to “steal.” The anticircumvention provision of the DMCA in turn made cracking this (west coast) code an (east coast) crime.

The result is a mix of protections for copyrighted material, operating at three layers. At the bottom is law—copyright law, regulating some uses of copyrighted material. In the middle is code—copyright protection systems, controlling access to copyrighted material. And at the top is law again—the DMCA, making it a crime to crack code protecting copyrighted material. Law (the DMCA) backs up code (copyright protection systems) designed to back up law (copyright law).

Now for some time, many have wondered whether the resulting mix of protections may have gone too far. For despite what we all thought we knew in 1995, many have begun to notice that copyright in cyberspace might be more protected than copyright in real space. That contrary to a future where copyright was dead, the copyright in cyberspace was alive and raging.

The reason has to do with this new tool for protecting copyright—code. Copyright law is balanced. But there’s nothing to guarantee that code protecting copyrighted material will be balanced as well. The law guarantees the “fair use” of copyrighted material; nothing says a copyright protection system must. The law protects copyrighted materials for “limited times;” nothing says a copyright protection system must. So quite quickly the debate about copyright in cyberspace moved to the question: What of the balance of copyright when code, rather than law, is the protector? How do we assure access and fair use when it is a program, not a judge, which decides who gets access when?

It is in this context that this debate about the arrest of Russian programmer Dmitry Sklyarov arises. For it is quite clear that Congress hadn’t thought through the mess they were creating when they enacted the DMCA. Congress never considered the prospect of an industry group threatening a computer science professor with DMCA liability if he spoke about his research in cryptography. (See the RIAA’s
to Princeton professor Edward Felten.) Nor did it imagine that the law would be wielded against a magazine for including a link to a site where cracking code existed. (See the prosecution
against the magazine 2600
.) Congress didn’t consider these matters; under lobbyists’ pressure, it just raced in to legislate. The result has been a mess of complications, including the mess that landed Sklyarov in jail.

A wide range of writers and scholars have criticized the arrest of Sklyarov—including
the alleged victim
of his “crime,” Adobe itself. These individuals and companies have different arguments, but they all come down to the same pragmatic point: in the middle of this mess, the government should not be using the unambiguous weapon of criminal prosecution against the at best ambiguous “crime” that Sklyarov was alleged to have committed. That this prosecution looks less like a balanced and appropriate response to the real threats to copyright in cyberspace, and more like a miscommunication between Adobe and our Pinkerton-FBI.

In his column
in Inside.com
, Roger Parloff criticized the critics of the government’s prosecution. Free Sklyarov? “Spare me,” Mr. Parloff sneered. The column reeked with impatience at the very idea that there was another side to this alleged crime. It chided the Electronic Frontier
(of which I am a board member) for its lack of “candidness” in defending this Internet “hacker.” And it urged readers instead to return with him to “Planet Earth”—where it was clear that a crime had been done, and that the statute under which the criminal was being prosecuted was a necessary tool for protecting copyright in cyberspace.

For all these critics had apparently missed an important fact about cyberspace that somehow justifies this extremism in regulation. In breathless earnestness, Parloff explained, “it only takes a single unprotected copy to have the material spread. The cat is then out of the bag.” Unless drastic and strong measures were taken to stop any posting of a copyrighted work in the clear, protection for that copyrighted work would be impossible. Copyright would be dead. There would be no way for authors to survive if this breach in the dam were not stopped.

That’s right. It’s 1995 all over again. Copyright is dead unless radical new controls are allowed. Grisham will go bankrupt if his latest novel gets posted free on the net. And we know this because it just must be true. Freeing content means that no one will be paid. Arguments in favor of free content are arguments against artists being paid.

This was a questionable argument in 1995. Six years had not made it any less questionable. The claim that “a single unprotected copy” means, “the cat is out of the bag” is, and always has been, an empirical claim. We should return to “Planet Earth” to see if it is true. Does the posting of “a single unprotected copy” of John Grisham’s latest novel on the Internet mean that sales at Amazon disappear? Does the posting of songs by Lyle Lovett mean that CDs by Lovett are no longer sold? Did Napster increase or decrease sales of CDs? Did shutting down of Napster increase or decrease the sale of CDs?

In 1995, pundits had a very simple model in mind of copyright economics. Six years should have taught us the reality is a bit more complex. These are not nuclear secrets; we are not China trying to suppress pictures of the massacre at Tiananmen Square. “A single unprotected copy” does not destroy the market for the material copied. Indeed, as studies of Napster suggest, it often increases the market for the material copied.

What this means is not that copyright should therefore be unprotected. It means that the hysteria of 1995 should have died down. It means that the debate about copyright in cyberspace should move beyond the banalities of a generation (in Internet time) ago. It means that we should be addressing the issues of copyright in cyberspace in light of the full range of values that copyright law is meant to protect—both the interest of the copyright holder, and the free flow of ideas. Both the interest against piracy and the interest to assure adequate access and fair use.

Parloff chides the EFF for its failure to speak “candidly.” So let’s speak candidly, Mr. Parloff. You are completely right that copyright should be protected, in cyberspace no less than in real space. Piracy and theft are wrong, and where behavior in cyberspace is properly called “piracy” and “theft” it should be prosecuted. The law has, and will continue to have, an important interest in protecting artists against the illegal use of their work. That interest is precisely what copyright law advances.

But it is just false to assert that those who criticize the DMCA “fully appreciate that some sort of anti-circumvention legislation like the DMCA is crucial to maintaining meaningful copyright protection in the digital world. But they simply don’t want such protection maintained.” That may have been a true description of the debate in 1995. It is not an accurate description of the debate today. Adobe Corporation did not criticize the arrest of Dmitry Sklyarov because it didn’t want “such protection maintained.” I didn’t criticize the arrest of Dmitry Sklyarov because I was eager to welcome the death of copyright. People criticized the arrest of Sklyarov because it is the latest and perhaps best example of the extremism that this early ignorance about the nature of copyright in cyberspace produced. They criticized the arrest because it was so far removed from the realities here on “Planet Earth.”

Here on Planet Earth, we don’t arrest employees of Smith and Wesson when a gun they produced kills a police officer. We don’t criminalize the production of VCRs just because some use their VCRs in ways copyright law would disapprove. No doubt, the use of tools to commit a crime often enhances the punishment for that crime—use a gun to rob a store, and your sentence is drastically increased. But where technology has both a legitimate and illegitimate use, the law targets the illegitimate use, and not the technology.

A “candid” appraisal of the real debate happening here on “Planet Earth” would advance an understanding of this more complex reality. It would put this matter in context—both the empirical and legal context that actually matters to companies like Adobe. The debate is not advanced by a form of digital redbaiting, pretending nothing new has happened since John Perry
and Esther
first wrote about copyright in cyberspace in the early 1990s. They may well have been ahead of their times. They always are. But the issue is not anymore whether copyright is dead. The issue is how many other values get sacrificed in the name of protecting copyright. That is the debate we should be having. And it is against the background of that debate that this arrest of a foreign programmer for writing code legal in his own country looks particularly grotesque.

Author: Lawrence Lessig

News Service: The Filter

URL: http://cyber.law.harvard.edu/filter/lessig-sklyarov.html