Apr 052010
 

I was asked to write a Blawg Review celebrating the 300th anniversary of the birth of the Statute of Anne. It may instead be more appropriate to mourn its death.

Obviously the Statute of Anne, having been put in force 300 years ago, almost to this day, is no longer good law in any jurisdiction. In fact, almost immediately after it was enacted it began to be transformed. But it stands as a turning point in the history of English law-based systems by being the first true instance of copyright law as we’ve come to know it. Prior to the Statute of Anne, the privilege to publish was invested by the monarch in just a handful of companies who had an exclusive monopoly on all publication. Nothing could be printed that the Stationers’ Company and its select few brethren did not deign to print, and they were endowed with police powers to enforce their total control of the market for printed works.

Clearly such total power over the creation and dissemination of written works would cause a politically restless populace to bristle, and Parliament eventually acted to wrest the Royal Privilege to publish from this cabal and restore it to the population at large. It is thus bitterly ironic that today, almost exactly 300 years later, the English Parliament stands ready to do the exact opposite and restore total control over the creation and dissemination of work to a new generation of monopolists.

What makes it so ironic is, of course, what has long been forgotten: that the Statute of Anne was passed as “An Act for the Encouragement of Learning.” The intent of the copy right it created was always to stimulate the dissemination of knowledge. Now, three hundred years later, we have the ultimate disseminator of knowledge: the Internet, yet in England — as well as countless other countries — copyright law is evolving to stop the spread of information — the exact opposite effect.

But its project has not yet succeeded, and the Internet is so far still able to provide a wealth of information, a small portion of which this Blawg Review will highlight as I explore the premise, promise and problems of the Statute of Anne and its legacy.


The Digital Economy Bill

The point of this Blawg Review is not to take pot shots at England, but it would be remiss not to call attention to the Digital Economy Bill working its way, appallingly rapidly, through Parliament. Ostensibly a bill designed to advance the Internet in England, it has clearly been drafted by people with little to no understanding of how the technology works, or how and why people use it. By failing to understand its value the government is about to destroy it, and with a casualness almost more egregious than any deliberate intent to destroy it might be, for the government is (so far?) affording only the most scant debate to the most titanic shifts in English Internet law.

Blawg Review: Lilian Edwards offers commentary at her panGloss blog about some of the more egregious clauses.

Blawg Review: England is also currently wrestling with reforming its libel law. CharonQC relates on his blog why MP Tom Watson chose not to support the latest proposal on that front, as well as commented on some other current legal absurdities in today’s England, as did Ken at Popehat .

ACTA

Meanwhile it’s not as if the United States can escape similar criticism. It has been embroiled, along with many other countries, in secret negotiations to develop yet another treaty regarding intellectual property that, despite protests to the contrary, would change domestic U.S. copyright law (as well as the law of other countries party to the agreement). The U.S. is already party to plenty of other intellectual property treaties, including a variety of trade agreements it’s forced other countries to accede to. But ACTA would go even farther than those in affecting national law. Putting aside the particulars of how it would change copyright law, especially with respect to the Internet, ACTA presents two significant problems right out of the gate:

Firstly, that it amounts to “policy laundering.” In the U.S., copyright law is in the domain of Congress to legislate. In theory, if the People preferred copyright law to be different than it is, the People are perfectly capable of electing representatives who would change it. But with treaties, the executive branch can bind the country into an agreement that requires national law to be changed in order for the country not to be faced with the sanctions of breaching it. What makes it “policy laundering” is that particular interests who are unable to get a majority in Congress to change the law as they would like can simply lobby the single Executive to do their bidding instead.

Secondly, the much larger concern is that even if every term of ACTA being negotiated were agreeable… well, there’s no real way to even know that, because it’s being negotiated in secret! The bits that have leaked have not inspired confidence, however, yet the most significant problem remains that the people who will be affected by this treaty have no ability to review, object to, or even support its provisions.

Blawg Review: Walter Olson at Overlawyered has a post rounding up several posts on ACTA. See also David Post at the Volokh Conspiracy, Margot Kaminski at Balkinization, and Andrew Moshirnia at Citizen Media Law Blog. On the upside, Susan Crawford notes that the EU has voted to oppose the ACTA negotiations.

Three-strikes

There are several regulatory features that make proposals like the Digital Economy Bill and ACTA so onerous. One is the notion of “three strikes.” The idea behind “three strikes” is that infringing recidivists should risk losing their ability to further infringe. That’s right: download a song without authorization three times and you lose your connection to the Internet.

Again, putting aside for the moment the abhorrent policy value this type of rule represents, “three strikes” policies generally also suffer the fatal infirmities of privacy loss (how is it that anyone would be able to know whether someone was filesharing?) and due process violations (once accused, how practical, plausible, or affordable is it for someone to defend themselves against the charge?). It also represents a massively disproportionate response to whatever harm filesharing might cause anyone, to be able to cut people off from the Internet, making no account to the injury such termination would cause to their lives and livelihoods — and even their families lives and livelihoods, since if one person on a network gets accused of filesharing, then everyone gets cut off.

Blawg Review: On the subject of Internet privacy, this week the New Jersey Supreme Court reaffirmed employees’ right to privacy in their emails sent from work computers. Evan Brown blogged about the ruling at Internet Cases. Meanwhile the EFF posted about an important judicial victory repudiating the U.S. government’s warrantless wiretapping, and James Grimmelmann reminds us how dangerous GoogleBuzz was to people’s privacy. On her blog Clarinette further explores how privacy issues will cause more people to encrypt their communications.

Blawg Review: On the subject of due process, this week also brought news of a new legal onslaught against Internet users. A coalition of independent movie producers has decided to base their revenue streams on mass litigation against presumed filesharers of their movies. Eriq Gardner at THR, Esq. has the story, as does Ray Beckerman at Recording Industry v. the People.

Vicarious liability

Another defective feature of these types of proposals is their imposition of liability, or at least duties to fulfill in order to avoid liability, on any party whose tool or service happens to facilitate infringement. The inherent danger to these types of rules is that they chill innovation. Great technologies that enhance our lives could not be developed if, by their nature, they in any way allowed someone to make an unauthorized copy of copyrighted content. So should the notion of vicarious liability be strengthened, there goes the hard drive. There goes Google. There goes the ISP. There goes virtually every technology or service that makes the Internet work or be useful, since every bit of content on the Internet ultimately requires copying somehow in order to be consumed.

Blawg Review: Jeremy Phillips at IPKat chronicles this week’s decision by the Chancery Division of the High Court for England and Wales to hold Newzbin liable for infringement for informing people where on Usenet they could find the content they were looking for, as does Peter Groves at Ipso Jure and Andres Guadamuz at Technollama. Meanwhile Cynthia Foster reports on a similar conclusion by a federal judge in California, and William Patry wrote about another secondary liability case in Singapore.

Blawg Review: There are those who propose immunizing from infringement liability intermediaries who install filters to catch users impermissibly transferring files. Assuming that it is possible for a filter to constructively identify whether or not a downloader (or uploader, for that matter) had the right to do so (it’s not), and ignoring the privacy violations involved in examining Internet users’ communications, the filters themselves are too imperfect to be useful, as Venkat Balasubramani reminds us at SpamNotes.

DRM, DMCA, damages, derivatives and other detritus

The list of modern complications arising out of copyright law is too long to go into much further here. But a few significant ones are worth touching on, such as DRM. “DRM,” for those unfamiliar, stands for Digital Rights Management, a technological measure that attempts to control how a digital work is accessed. It’s intended to prevent people from sharing digital content; in reality, it frequently prevents legitimate users from accessing content too.

The DMCA, for its part, is a poorly-conceptualized U.S. amendment to its copyright law. Two of its most significant features are its prohibition on circumventing DRM, and its notice-and-takedown requirements. In order to immunize ISPs and web hosts from liability for potentially infringing material its users may post, the DMCA establishes a series of rules for hosts to follow in responding to allegations of infringement. However, even if a notice-and-takedown system were a good way to keep Internet providers from getting into trouble as a result of their users’ behavior, the current incarnation of the DMCA means that content can be deleted against users’ will simply on the basis of an accusation of infringement, whether or not it be deserved, and without any sort of equivalent recourse for the user if the accusation were false.

Blawg Review: Allegations of infringement happen all the time, way more often than they are warranted. At Scrivener’s Error C.E. Petit discusses what hopefully will be the final chapter in SCO’s failing litigation efforts to prove it owns copyrights in Linux software.

Blawg Review: Damages are a significant component of copyright law, designed to be both a remedy and a deterrent. But periodically the types of damages the law calls for ends up disproportionate to the problem they are supposed to address. Jonathan Turley writes at Res Ipsa Loquitor about a woman ordered to pay $40,000 for 37 songs she downloaded when she was 14. On the other hand, sometimes the damages the law calls for are too low to be any sort of effective deterrent against copyright infringement. Aurelia J. Schultz writes on the Afro-IP blog about Swaziland’s updating of its law to address that problem.

Derivative works also require attention. These are works built upon other works. To some extent they are protected by the notion of fair use (at least in the U.S. where the doctrine of fair use exists, to the extent that it still does; other jurisdictions may have somewhat similar analogs). But in many instances the copyright holder of the original work can enjoin or sue anyone who uses it to create something else, no matter how worthwhile that something else is.

Blawg Review: Pamela Chestek writes about a lawsuit against M&Ms, nominally about trade dress but with a copyright component, and Mike Masnick points us to an article about figuring out whether posting one’s vacation pictures at Disney World would amount to copyright infringement. Meanwhile Kembrew Mcleod writes about a filmmaker with nightmares about being sued for having used small samples of music in a documentary about people who create with samples of music.

Bottom Line

How on earth did we get this mess out of the Statute of Anne? How is the Statute of Anne even recognizable in any of it?
The Statute of Anne did establish one critical conceptual piece of copyright that is still with us today: the notion of the author’s right. It was a significant change from the previous paradigm, when the printers assumed all moral authority for the work. The idea that one’s creation somehow belonged to the creator was revolutionary, at least in England, and consistent with some of the espoused local philosophy of the time. In and of itself, there’s also not necessarily anything wrong with it. Rewarding authors with limited, yet exclusive, copy rights for limited terms to protect against unfair competition was a reasonable bargain to strike in the advancement of the overall goal of the Statute: the promotion of learning.

Blawg Review: At the Creative Commons blog Mike Linksvayer discusses the economics of open courseware. John Willinsky discusses similar issues with respect to Canada at Slaw.ca.

This right, however, was not to congratulate the author for having written but rather to enable the commercial exploitation of the work. Parliament wanted more books to be written, and granting authors this monopoly of limited duration was seen as the solution for fulfilling that goal.

And yet now we see vastly expanded terms. Vastly expanded protections. On vastly expanded categories of works. With a vastly smaller public domain, and vastly more severe consequences for those who would, no matter how reasonably or inadvertently, infringe.

Maybe the Statute of Anne tried to do too much, too soon. Never mind the public, from the outset there was tension between authors, printers, and booksellers, which the Statute of Anne may never have quite resolved. Then there was tension between Parliament and the Courts, as the latter struggled to figure out the intended boundary of this newly-defined “copyright,” which left behind some confused precedent. There was also tension between those creators who had copyright in their medium and those who did not, and so over time copyright law was extended to cover these additional types of works too.

Blawg Review: Some additional posts contemplating the history of the Statute of Anne include two discussions about “piracy,” by Richard Padley and Ray Dowd. Gabriella Coleman reads the purpose of the statute as being for the public, and Mary L. Dudziak cites a paper by Tomas Gomez-Arostegui on the first lawsuit under the Statute of Anne on her Legal History blog.

And then there was tension between copyright in England, and copyright everywhere else. Not knowing where protection began and ended led to efforts to harmonize the copyright law among different countries, even countries that approached the concept of copyright entirely differently. What the Statute of Anne teaches us, if nothing else, is that copyright law is not an inevitability — even in England it is but 300 years old — and other countries and cultures historically have found their own solutions to the same problems copyright supposedly solves.

Blawg Review: The pressure of one legal system on another to change the latter’s copyright law has certainly not let up. Michael Geist writes about the EU’s efforts to change Canada’s law, and Kevin Smith about the harmonization efforts of the treaty process. Over at IP Dragon Danny Friedmann discusses copyright self-regulation in China.

But the end result of this 300-year “evolution” is a law full of absurdities that in no way delivers on the intended goal of the Statute of Anne. The quid pro quo of giving creators a little monopoly so the public could get access to their creations has given way to total domination by the creators over nearly all exploitation of their works, essentially indefinitely, at the expense of the public, and in nearly every country there is. This author-centric copyright law found around the world may be able to trace its lineage back to the Statute of Anne, but like a clone that’s been copied too many times, its DNA has been degraded to the point that it is unrecognizable compared with its ancestor.

These changes have happened incrementally over the centuries, but with the arrival of the Internet the pace has increased. Like the Stationers’ Company panicked at the coming of a new political age, today’s incumbents fear the challenges to their power the digital age may herald.

But like we saw 300 years ago, change need not be unwelcome. Change provides opportunity to enhance society. Just as the Statute of Anne led to an explosion of public discourse, now liberated from heavy government control, the Internet presents the universe of nearly unlimited content to learn from, enjoy, experience — and build upon. (Don’t forget: even authors are regular users sometimes.) A tool like the Internet that can so enhance the public sphere needs law focused on enhancing the public sphere too, just like the Statute of Anne once did.

So maybe on this 300th anniversary of the enactment of this statute its time to think about reviving it. The Statute of Anne may be dead, but perhaps its promise is not.

See here for a follow-up to Lance Godard’s Blawg Review #257 at 22 Tweets, and tune in next week when Blawg Review #259 will be hosted at Legal Blog Watch. Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

 Posted by at 3:37 am

  4 Responses to “Blawg Review #258”

  1. Is it gonna matter a hundred years from now?
    http://www.youtube.com/v/Ynr1UiNeCR8

  2. Thank you for solving the Huey Lewis problem :-) (Sorry the comments kicked out the embedding.)
    I guess we should play that song three times?

  3. Wow that all seems very complicated, maybe we should all believe in the power of….Huey!!! http://www.youtube.com/watch?v=wFaXTcR4dtE

  4. I love blawg reviews where I learn a lot. Well done!

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