As Justice Sandra Day O’Conner pointed out in one of the seminal copyright
cases of the last century, the purpose of copyright is not to reward the labor
of authors, but to promote the Progress of Science and useful Arts. There is general consensus among rational people that in a free and open
society, the creation and free exchange of ideas is the best way to promote the
Progress of Science and useful Arts.
This is in contrast to totalitarian or pharaohonic regimes, where the best way
to promote the Progress of Science and useful Arts is through selective
dissemination of ideas to indoctrinated disciples in mystery schools or
the constitution was framed, the founding fathers made a Faustian bargain to
attain their goal of promoting the Progress of Science and useful Arts. They surmised that in light of the politically expedient solution that
the British Crown had struck with publishers in England through the Statute of
Anne, that American authors and
publishers might also expect some sort of
extended property rights in their works. So the founders grudgingly allowed authors to retain certain exclusive rights
for a limited time in the hopes that this would spur them to more furiously
create works of creative endeavor which, although temporarily constrained,
would ultimately lead to a surfeit of unconstrained intellectual capital that
would be exchanged, discoursed and built upon, all to the benefit of society.
Thus, copyright is a balancing act which attempts to maximize the creation of
ideas by equilibrating the economic interests of authors, publishers and
copyright owners against society's need for the free exchange of those ideas. Or to use the internal combustion metaphor alluded to in the title,
copyright is the carburetor of the engine of creative production. When the spark of creativity is applied to the correct mixture of air
(public access) and gasoline (economic interest), the Engine of Creation runs
smoothly. When too much air is
pumped into the carburetor, authors lose incentive to create, and the engine
sputters. When too much gasoline
is pumped in, society loses access to the free exchange of ideas, and the
engine shuts down.
As it turned out, even the limited amount of exclusivity granted by the
founding fathers was too overreaching. Scholars were hobbled in their criticism; reporters were hamstrung in
commentary, and teachers suffered obstacles in their educational efforts.
Out of this discontent, the doctrine of Fair Use was born. Originally created in case law, it was eventually codified in the
Copyright Act of 1976. The common
law declared that without Fair Use, the Engine of Creation was flooding the
carburetor. Fair Use was the
necessary injection of additional air required to keep the engine running.
The Fair Use provision of the Copyright
Act basically allows reproduction and other uses of copyrighted works under
certain conditions for purposes such as criticism, comment, news reporting,
teaching, scholarship or research. Additional provisions of the law allow uses
specifically permitted by Congress to further educational and library
As the Internet began to blossom in at the end of the last century, copyright
owners began to fear that the technological ease with which copyrighted
material could be reproduced would have the effect of pumping in too much air
into the carburetor of the Engine of Creation. They lobbied politicians for increased constraints on the copyright law,
the absence of which they claimed would cause authors to lose incentive to
create, and the Engine of Creation to sputter in the Digital Age.
However, the real problem was not that
the Copyright Act of 1976 couldn’t handle the technological innovations from a
legal standpoint, but that legions of miscreant teenagers would illegally
inject nitrous oxide and street race the Engine of Creation. It would be too cumbersome for the copyright owners to protect market
share within the constraints of the Copyright Act of 1976; they needed more
weapons of constraint to crack down on the street racers.
The politicians obliged the copyright
owners entreaty for more gas and less air in the form of the Digital Millennium
Copyright Act. And in 1998, they
pulled the choke on the Engine of Creation.
The primary constriction of air was manifested in the anti-circumvention
provisions in the DMCA. Basically,
these provisions prohibit the breaking of copyright protection schemes.
While this seems eminently reasonable on its face, upon reflection one
can imagine myriad circumstances when a fair use would require the
circumvention of a copyright protection scheme.
In a world where few creative works are
protected by such schemes, the provisions don’t appear to be an egregious
encroachment. In the fast
approaching world where virtually every creative work will be locked up in such
schemes, the provisions take on a slightly different pallor.
The anti-circumvention provisions of the DMCA distinguish between two
- unauthorized access to a work, and
unauthorized copying of a work.
The DMCA prohibits the sale or distribution of technology that would
enable either the unauthorized access to a work or the unauthorized copying of
a work. However, only the act of
gaining unauthorized access to a work is prohibited.
The distinction is a neat bit of
sleight of hand employed to ostensibly preserve fair use. The theory is that since copying a work may be a fair use under
appropriate circumstances, the DMCA does not prohibit the act of circumventing
a technological counter measure that prevents copying. However, the trafficking in tools to accomplish this is prohibited, so
you have to be a hacker to enjoy fair use in the Digital Age.
As far as unauthorized access to a work is concerned, the argument is that
since fair use is not a defense to the act of gaining unauthorized access to a
work, the act of circumventing a technological measure in order to gain access
is prohibited. This raises many
thorny issues, not the least of which is that in the real world, you generally
need access to a work in order copy the work.
So what is the effect of the DMCA on the Engine of Creation as we head into
the Digital Age? In an environment
where all creative works of import are embedded in some flavor copyright
protection scheme, only hackers that have legitimate access to those works will
have an effective right of fair use.
When viewed from the context of the constitutional mandate to promote the
progress of science and useful arts by balancing the economic interests of
copyright owners with society's need for the free exchange of those ideas, this
seems like an odd bargain.
What is clear is that society got caught in pincher between the powerful
economic interests of the copyright owners and the threats posed by
file-sharing street racers. The
fallout was the DMCA which pulled the choke resulting in more gasoline being
pumped into our metaphorical Engine of Creation.
The apparent trend of this result is
that society is at risk of reduced access to the free exchange of ideas.
And to follow this thesis to its logical conclusion, we can imagine our
Engine of Creation shutting down, and society suffering a stasis of Science and
the Useful Arts.