Unit 3: Green Paper, White Paper, Go.

The readings of this week noted the erosion of the first sale doctrine and the doctrine of fair use by the introduction of 'copyright licensing' and its accompanying technological protection. The Green/White Paper Reports put out by the Lehman group to protect the rights of digital content owners circumvented issues of fair use by employing licensing strategies. Licensing combined with technology allows copyright holders to retain control of what is done with their product after it is in the possession of the user. Licensing can even restrict use that would normally be protected by fair use guidelines and/or the first sale doctrine. Sometimes the user owns the product--like buying software; and sometimes the license is similar to a rental agreement--like a license contract between a library and an electronic journal publisher.

One of the fun things about investigating the Lehman Group Papers are the 1990's html-ish blogs that Internet users were using at the time to communicate with the Internet community (I mean, the "National Information Infrastructure") about the Lehman Group findings. One blog, Teleread--still a functioning blog with lots of interesting copyright finds--had an entry from 1995 called Lehman Panel's Report on Net Commerce in Final Phases of Tugs, Pulls and Faxes, which discussed some of the criticisms of the Green and White Papers. A particular quote from this blog illustrates Litman's point that a common strategy to create copyright law was to claim it already was law (Litman, p.95):

Discussion of court cases in the draft also seems filtered through the lenses of a copyright owner rather than users. There was one phrase, in particular, that irked many: "It has long been clear under U.S. law that the placement of a work into a computer's memory amounts to a reproduction of that work." In fact, that is a recent and controversial aspect of U.S. law.

The author of the blog noted that the Green Paper had been drafted with a pro-copyright holder bias, and noted that "One lawyer who knows Lehman says the patent commissioner has an unduly harsh fear of the dangers of technology, such as rampant infringement, without a corresponding appreciation for its upside."

The rational that brought about the Lehman group's embrace of licensing was the old tried-and-true strategy of claiming industry death would result without copyright protection from the voracious industry-consuming public. Another excellent Teleread find was a link to a current paper: Lemley, Mark A., Is the Sky Falling on the Content Industries? (August 10, 2010). The author makes some very entertaining points about how industry stakeholders were always sure that the next invention would destroy their product, whether the product was books, radio, television, movies, etc. Lemley makes a great reference (p.7)to a music industry campaign to block audio cassettes, on the ground that recording music at home would destroy radio audience-ship. He also suggests that monks probably objected to the printing press, on the grounds that it would destroy print culture (p. 1). Both Lemley's paper and Litman's book agree on the point that creators keep creating regardless of changes in media. Infringement on the public's usage rights is possibly not as necessary as Lehman and worried industry stakeholders would have Congress, and the public, believe.

One last particular reading of the week, the pro-CD vs Zeidenberg case, is a real-life example of the setting and enforcement of copyright law by litigation. This case provided a precedent for shrink-wrap licensing enforcement. The take-home message of the case seemed to be that companies could use contracts to push past the limits of copyright law. Companies can create contracts whereby users agree to relinquish rights in order to use the product--contracts and licenses can be used to secure restrictions above and beyond copyright law.
A few questions that I had after reading the case were:

1. If a book came in a wrapper with fine print that said if you removed the wrapper you were agreeing to give up your right to use the book within the guidelines of the first sale doctrine, would that be legal?
2. How can a consumer browse products at a store when there are hidden guidelines inside the packaging? What if there had been an equivalent product that did not have the same restrictions that Pro-CD had?

Note: The "Home Taping is Killing Music" image was taken from a Wikipedia reference. It was also used in the Lemley paper (with permission, one would assume). I am using it under the guidance of the four fair use factors:

1. This is a blog for educational purposes, not for profit or of any commercial value, nor likely to be read by more than a very few unlucky people.
2. The copyrighted work is an imaginative work--counts against fair use...
3. But, it is only one small image used once.
4. And, as it is now a defunct campaign of long ago, should have no effect on value of copyrighted work.

References:
Lemley, Mark A., Is the Sky Falling on the Content Industries? (August 10, 2010). Available at SSRN: http://ssrn.com/abstract=1656485

Litman, J. (2001). Digital copyright: Protecting intellectual property on the Internet. Amherst, N.Y: Prometheus Books.

ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir.1996)