Greetings,

This is my first post on the blog. My name is Bill Herman, and I’m a Ph.D. candidate at the Annenberg School for Communication, University of Pennsylvania. I study media policy generally and copyright specifically.

I’m honored to use my first post to talk about the mammoth (> 25k words) paper I’ve just finished with Prof. Oscar H. Gandy, Jr. In it, we study the legislative history that went into the DMCA‘s anticircumvention clause (17 U.S.C. § 1201) and conduct a content analysis of the triennial exemption hearings conducted by the Register of Copyrights, Marybeth Peters. The paper, “Catch 1201: A Legislative History and Content Analysis of the DMCA Exemption Proceedings,” goes out to law reviews today. Here’s the official abstract:

17 USC § 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.

Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for Section 1201 were laundered through international treaties, obscuring the anticircumvention clause’s domestic origins. Further, we conclude that the exemption proceeding is constructed not to protect noninfringing users, but to limit courts’ ability to exonerate them via the traditional defenses to copyright infringement.

We then conduct a content analysis of the first two proceedings, conducted in 2000 and 2003. Exemption proponents generally interpret the law’s intent in terms of policy goals such as fair use, whereas opponents see jurisdictional, procedural, and definitional obstacles to the granting of exemptions. The Register of Copyrights’ interpretation of the law closely resembles that of opponents and, on more than one key point, she refers proponents back to Congress. We conclude that the Register has constructed a venue that is hostile to the interests of noninfringing users; in light of congressional rhetoric to the contrary, this constructs a catch-22 for many who earnestly wish to engage in otherwise legal activities.

If you’d like to read the 90 page mammoth or any part therein, please email me.

A key part of Free Culture activism is the belief that fairness matters: Artists should be paid for their work. Citizens should be free to participate in the production of culture. Recycling, borrowing, sampling, mixing, and reusing snippets of culture are integral parts of being social — of being human.

Fairness isn’t a new idea. Every day, all of us rely on informal agreements, or what you might call fairness contracts: I expect that when I buy a movie ticket, I’ll see the movie I paid for. The sidewalk artist expects that when I agree to pay $10 for a portrait, I will.

But when ethical relationships among creators, audiences, and distributors are sabotaged, it hurts everyone. Two recent examples come from entertainment and technology giants.

First, the MPAA admitted to lying about its members’ annual revenue. This matters because when you’re asking for fairness, it’s important to be fair. If the MPAA is going to argue that its members are being unfairly deprived of profits — i.e., people are stealing their movies — they shouldn’t use made-up numbers to make it sound more dramatic. I could tell you my T-shirt is worth $791, but that doesn’t make it true.

Much more disturbingly, Sony just confessed to sneaking malware into music CDs. Their excuse is that it’s part of digital-rights management, and they were just trying to prevent their (legal) customers from illegally making copies.

Never mind that this argument upends the fair-use practices of the last 30 years. Sony’s fundamental crime is violating the informal fairness contract between buyers and sellers. The malware was difficult to detect and apparently could not be uninstalled using traditional methods. Worse, it seems like it wasn’t mentioned in the End User License Agreement.

If that’s true, it’s profoundly stupid. The EULA is a tech company’s get-out-of-jail-free card. If Sony included a poison pill into its own product and didn’t even try to slip a mention of it into the EULA, that shows contempt. Contempt for its customers, and contempt for the fairness contract.

Heaven knows I’m no fan of EULAs, and heaven knows the fairness contract has a lot of holes in it already. But Free Culture is partly about restoring respect for each other’s work. As argued in Free Culture (the book), when people consciously break laws over and over, eventually they lose respect for the rule of law. The same goes for companies. When Sony violates industry practices by subverting fair use and bypassing their own EULA, they’re showing disrespect for the system of laws and informal contracts that make our world work. To tell Sony what you think, go here.

Rumors about the impending “Death of Copyright” may be greatly exaggerated, to borrow Mark Twain’s phrase. But a recent International Herald Tribune op-ed takes the issue to its logical next step. If copyright is dead, what comes next?

The IHT authors offer several suggestions. For some works, they define artists as risk-taking entrepreneurs, adding: “We propose that the risk bearer — the artist, the producer or the patron — receive for works of this kind a one-year usufruct, or right to profit from the works.” If that sounds familiar, it may be its echo of the original 14-year copyright term enshrined in the U.S. Constitution.

The authors’ solutions are imperfect, and already being critiqued. But for those of us who think the current system is failing, envisioning the next is vital. Please add your own suggests and links in the comments to this post.

Of course, a vision alone is not enough. Creative Commons has been at the forefront of the “Some Rights Reserved” movement to create practical, working alternatives to traditional copyright. Their solutions don’t fit every situation, but their tools help illustrate the palette of choices available to creators. To help keep the spotlight on copyright alternatives, donate now to their First Annual Fall Fundraising Campaign.

An update on our Cereal Solidarity campaign: We’ve finished collecting signatures on our No Business Method Patents petition — with over 300 signatures online — and we’re moving on to phase 2.

In the coming days, we’ll be drafting letters to deliver the petition to its targets. We’ll ask Cereality to make nice and withdraw their ridiculous patent application; we’ll ask the Patent Office to reject the patent if Cereality doesn’t; and we’ll ask Congress to eliminate business method patents for good.

In other news, there’s an article about Cereality and Cereal Solidarity in today’s Daily Pennsylvanian, the student paper at the University of Pennsylvania. The article, “Cereality warns potential copycats,” highlights the growth of other cereal bars across the U.S. In other words: lots of people will be in danger if this patent goes through.

The article also talks about Cereality’s trademarks. For the record, let me say that (IMHO and AFAIK) Cereality hasn’t done anything wrong with their trademarks. For instance, the article mentions a café in Iowa called Cerealogy that changed its name to avoid trademark infringement. That seems like a pretty good case to me: the names are rather similar, and there’s probably a good likelihood of consumer confusion, especially considering Cereality calls its employees “cerealogoists”. (If you can show me that the word “cerealogy” has been in general use for a long time, I might change my mind.)

In other words, we’re not anti-Cereality, nor are we anti-”intellectual property” (though we don’t like the term very much). I think Cereality is a good concept, and from what I’ve seen, it looks like a well-run business. We just think Cereality made a mistake when they decided to apply for a patent — and we think business method patents are a mistake all around.

In fact, I’m prepared to throw my support behind Cereality if they withdraw their application and join the growing coalition of voices against business method patents. We don’t want to be confrontational, especially if we don’t have to. I hope Cereality does the right thing.