I’ve finally finished Lawrence Lessig’s Code 2.0 since getting distracted with Wilde. It was a good and easy read, if somewhat preachy all the way through. I especially enjoyed the interesting questions it brought up in light of the recent SOPA debates. One concept was that of “prior restraint,” which is when the government can stop the publication of materials before they are out there. This power is generally restricted by the 1st amendment, except in cases like military troop positions. However, Lessig mentions the Pentagon Papers as a strong example of the government not being allowed to control the publication of even state secrets when they do not directly cause harm. I’m not up on legalese, so I may be reading this the wrong way, but wouldn’t SOPA contradict the “prior restraint” principle?
Because: who is it that’s committing the crime? If I put a mp3 file of a song I brought up on “the cloud” or in my digital dropbox, or on my blog – did I just republish it (thereby breaking copyright law), or is it republished only when someone comes along and downloads it (because you can’t hear it until you download it)? And if no one downloads it, did I still commit a crime just by posting it? Who’s really making the copy, me or the person downloading the file? If the person who is downloading the file is the one who is breaking the law because it is he or she that is making the copy, then blocking access to a site that would provide this ability would be exercising “prior restraint.”
I’m clueless about these rules so I went to the US copyright office to read the Digital Millennium Copyright Act (DMCA) but I found it less-than-readable for me, so I went to the next best thing: the Wikipedia page on the DMCA. Wikipedia had this example to show how the law would works in practice:
- Alice puts a video with copy of Bob’s song on her YouTube.
- Bob, searching the Internet, finds Alice’s copy.
- Charlie, Bob’s lawyer, sends a letter to YouTube’s designated agent (registered with the Copyright Office) including:
- contact information
- the name of the song that was copied
- the address of the copied song
- a statement that he has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- a statement that the information in the notification is accurate
- a statement that, under penalty of perjury, Charlie is authorized to act for the copyright holder
- his signature
- YouTube takes the video down.
- YouTube tells Alice that they have taken the video down.
- Alice now has the option of sending a counter-notice to YouTube, if she feels the video was taken down unfairly. The notice includes
- contact information
- identification of the removed video
- a statement under penalty of perjury that Alice has a good faith belief the material was mistakenly taken down
- a statement consenting to the jurisdiction of Alice’s local US Federal District Court, or, if outside the US, to a US Federal District Court in any jurisdiction in which YouTube is found.
- her signature
- If Alice does file a valid counter-notice,YouTube notifies Bob, then waits 10-14 business days for a lawsuit to be filed by Bob.
- If Bob does not file a lawsuit, then YouTube must put the material back up.
So, I guess this is saying that Alice did break copyright law, so my prior restraint argument won’t really work. This seems a bit odd to me, but perhaps it makes sense in this case because the Youtube viewer would not be downloading the video, but just watching it, and so isn’t really making a copy. Oh well.
Another interesting problem in the digital context is: what is fair use anymore? As a teacher, I can play a song in my classroom, or make photocopies of a poem, or part of a book (I think? I just second-guessed myself here, and just now went to the copyright guide for librarians and educators, which is also not very helpful – there are some clauses in here which make no sense, like that I have to be spontaneous with the use of copyrighted material? I’ve been teaching the same William Carlos Williams poem for three years; am I going to go to be fined by his estate someday?) Anyway, some educational use of copyright material is supposed to be fair, but what if I’m teaching an online class? If the school doesn’t give me access to course management software like Blackboard that would keep non-students out, and I post copyrighted poems on a website I make, I could be asked to take them down. Lessig makes the point, though not using this particular example, that instances of fair use are disappearing on the web due to the Internet’s very controllable nature (though Lessig doesn’t like using this word, nature, to describe anything about the Internet, since its “nature” is what we make it to be, through code…but isn’t that referring to an essential nature itself?). I sing a copyrighted song at a friend’s house, or even at a bar, and who’s going to stop me? I can even make a tape recording and copies for all of my friends, and no one will probably care. But I sing it online and put it on Youtube, and it’s no longer for “private” use – on the Internet, you can’t help “publishing” if you want to share things, and making individuals into publishers opens individuals up to copyright laws that were previously only the purview of publishing houses and recording studios.