Public Knowledge recently published the second in a series of reports on copyright reform, this one entitled Updating 17 U.S.C. §1201 for Innovators, Creators, and Consumers in the Digital Age (May 13, 2010), written by students and faculty from the Samuelson Law, Technology & Public Policy Clinic at the UC Berkeley Law School and the Stanford Cyberlaw Clinic.

The thrust of the piece is that the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA) “has proven to be both too broad in its prohibitions and too narrow in its exceptions. Because of this, it fails to appropriately distinguish between circumvention for lawful purposes and circumvention for unlawful purposes, causing a range of harmful effects to befall creators, consumers, researchers, innovators, and competitors.”

This even-handedness breaks down with respect to recommendations, however, which are focused on legalizing tools that can crack digital rights management technologies in the interests of promoting Fair Use.  Copyright holders would be protected only by their right to sue infringers, case by case.

The issues raised by this PK project deserve, and will get, more detailed attention here at Digital Society, but an immediate preliminary comment is in order – a major premise underlying the PK effort is misguided, which skews the whole effort. The Introduction to the project (registration required) argues that as “our communications system has become more open and accessible to the public, access to the copyrighted content that travels over that system has become more closed and proprietary.” The phrase is attributed to Gigi Sohn, the head of PK, but it is one of the bedrock assumptions of the academic Free Culture movement in general. And the argument goes on to assert the need to restore a “balance” between copyright holders and their audience that supposedly existed at some point in the past.

The problem with this vision is that it is legal-centric to the point of astigmatism. Creative material is protected by a mixture of technological possibility and legal rules, and the latter are crafted with an eye to the limits of the former. A good reference example is an e-debate I had with Larry Lessig a few years ago over property rights doctrines concerning ownership of the heavens.  For centuries, the legal rule was that a landowner possessed from the center of the earth to the heavens above, but when the doctrine attained practical importance, with the invention of the airplane, it was quickly modified to limit the landowners’ interest only to situations in which airplanes interfered with the surface use. One could argue that the landowners “lost” their property, but they did not really lose anything real.

Intellectual property rights are an interesting parallel. They get defined by legal doctrine in the light of what is technically possible at the moment. No one in the 19^th century sat down and thought about the rules that would apply to an Internet in case someone ever invented one, just as no early common lawyer ever said “but what if someone invents an airplane!”  (Nor did the 19th century lawyers think about the player piano, for that matter.)

Before the copying machine, a newspaper article, to take one instance, was well protected by technical impossibility. To appropriate it on a grand scale required a printing press and a distribution mechanism, so the law needed only to protect creators from these threats. The copying machine changed things in significant ways, but newspaper articles were still protected by economics, in that it cost more to copy and mail an article than it did to buy the whole newspaper,. Other  publications, such as scholarly journals, were forced into serious adaptations by Xerox, of course, and not very successfully.

The digital/computer/Internet revolution has made mass copying and redistribution both cheap and easy. The legal doctrines that sufficed to protect copyright holders in the pre-Internet era are no longer adequate, so some additional ones, such as the DMCA, have been developed to try to substitute for protections that were formally provided by technological impossibility. These efforts may or may not  be wise or effective – that is a question of its own — but the Free Culture movement keeps claiming that they constitute extensions of the protections available to copyright holders when in fact they are desperate attempts to patch up for a loss of the technological protections.

The Public Knowledge project is a debate worth having, but not if it focuses on law to the exclusion of the total gestalt.

For an excellent discussion of the Free Culture mindset, see Prof. Julia D. Mahoney, Larry Lessig’s Dystopian Vision (UVA Law Review 2004).  E.g.:

Curiously, though, Free Culture actually portrays a world that should elicit cautious optimism rather than fear of impending catastrophe. By Lessig’s own account, the expansion of the Internet has resulted in a constant stream of news and commentary—a great deal of it generated by individuals unbeholden to major media entities—with the happy result that thoughtful public discourse on substantive issues flourishes.  Free Culture also documents the myriad ways in which children and teenagers use digital technologies to develop their talents. Although the ability of the curious young to “tinker” with software code or online content is subject to some restrictions, there is no indication (other than a bald assertion that Lessig chooses to quote) that today’s young are in any danger of being excluded from the benefits of new technologies. In addition, Free Culture is replete with references to the enormous trove of facts, fiction, musical performances, graphic design, and artwork that creators, innovators, and consumers have access to (sometimes for free, sometimes for payments ranging from the token to the significant), and makes clear that the resources now readily available dwarf those of yesteryear.

To be sure, the picture that emerges is far from a best of all possible worlds. Adjusting the contours of property regimes, including intellectual property regimes, in response to social and technological changes can be difficult. As Lessig documents, ensuring that timely and sensible modifications take place poses challenges, and there is a constant danger that interest groups will promote property and regulatory regimes that injure their competitors or divert public or common property to their own use in possible contravention of the public interest.

But while the problems detailed are of real concern, it is hard to understand why Lessig thinks that they have the potential to extinguish the promise of early twenty-first-century advances. Lessig has set himself a high hurdle, namely to convince his readership that the saga of intellectual property in recent decades represents nothing less than a modern-day Miltonian epic: Paradise was lost when a property rights Eden was infested by the serpent of venal corporate interests, but might be regained through adherence to the reform program outlined in Free Culture.  Lessig fails to clear this hurdle for the simple reason that, taken together, the stories he offers in support of his thesis tell a richer, more complicated, and ultimately more interesting tale than the one he has in mind.

[Footnotes omitted][Disclosure – the initial “D.” in the author’s name stands for “DeLong”]