Stuart Biegel - A Call for Realism

A Call for Realism

Stuart Biegel

from Beyond Our Control? Confronting the Limits of Our Legal System

in the Age of Cyberspace, MIT Press, October 2001

(reprinted with permission)

In response to the problems reflected in the complex intellectual property law frameworks and the inadequate responses of our legal systems to the dramatic technological changes of the past thirty years, commentators have suggested a range of possible solutions outside traditional national copyright law. Ideas on the table include proposals for stepped‑up efforts to standardize copyright rules for global commerce through current and prospective international organizations, increased reliance on code to protect digital works, and the encouragement of additional private rule‑making by ISPs and content providers under a contract law theory. But while all these proposals may have their place, no reforms in this area will be complete unless and until the cumbersome and overbearing copyright laws addressing private personal day‑to‑day activity in cyberspace are adjusted for the new century.

Certainly, there have been some noble efforts to adapt these law to the changing digital environment, but Netizens today face the insurmountable challenge of sorting out an increasingly complex set of rules and exceptions. They are asked to make sense out of malleable doctrines and lengthy new acts that present even veteran attorneys with daunting tasks of statutory interpretation. It is no surprise, then, that day‑to‑day private copying has only increased in spite of congressional efforts to strengthen the laws. The inability of the average Netizen to understand the complexities of intellectual property law combined with the ease of use and the strong prevailing social norms that support widespread and indiscriminate copying together lead to a situation that is both predictable and understandable. MP3 issues –reflected in the recent debates regarding Napster and Gnutella – are only one component of this much larger picture.

If there once was an implicit social contract in this area, it has arguably broken down on a personal, day‑to‑day level in much the same way that it did during the prohibition of the 1920s. And enforcement of copyright laws remains nearly impossible under existing Internet architecture for the type of private copying that takes place in cyberspace on a daily basis.

The law has not truly come to grips with private personal copying since the advent of the xerox machine and the widespread availability of high-tech tools that could be used for the unrestricted taping of radio and television programs. Certain adjustments have been made, but most of the personal day‑to‑day copying that takes place in the privacy of an individual's own home remains subject to the vagaries of conflicting interpretation by members of the legal community.

It is completely unrealistic to expect Netizens to stop what they are doing and reflect on whether and to what extent existing copyright laws apply to the facts of their individual situations. Many have suggested, for example, that much of the day‑to‑day personal copying that goes on in cyberspace is fair use under well‑settled U.S. law. But while an application of the fair use doctrine to a given fact pattern may be a gratifying exercise for students in a law school classroom, it can quickly prove impossible for the average Netizen, who cannot and should not be expected to consult the range of case decisions that have interpreted the various factors in specific instances. And in addition to the case law and the extensive scholarship interpreting it, people must also take into account the complex language in the legislative history regarding the scope of the four‑factor test. The House Committee Report, which addressed this topic in the 1970s and was quoted by the U.S. Supreme Court in the Sony case, made clear just how intricate and subtle the application of this doctrine was expected to be:

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.

The committee went on to address in some detail the general intention behind the 1976 fair use provisions:

The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case‑by‑case basis.⁴⁵

Such an analysis, notably, does not even begin to address potentially conflicting laws at the international level.

Commentary addressing the current state of digital copyright law has reflected three basic positions. The first position argues that the laws are not strong enough, and that more stringent provisions must be added to existing statutes. The second position argues that current law is malleable enough to adapt to recent technological changes, and that even if not enforceable for the average user on a day‑to‑day level, these laws have important symbolic value. The third position argues that current law is unrealistic, outdated, and has been superseded by new social norms. As we have noted, the first position has been discredited because private personal copying has only increased in the aftermath of the stronger laws that were passed in the late 1990s. In addition, the second position is also questionable because current law has not proven easily adaptable to the new digital environment. And relying on traditional legal doctrines such as fair use to take care of most day‑to‑day problems cannot work as long as individual users are not able to understand and apply the rules themselves. Perhaps such an approach was practical in the days when individuals were not as free and not as empowered to conduct such widespread copying on their own, but this strategy is clearly no longer viable today. The third position‑that the law is unrealistic‑emerges as the most apt characterization of cyberspace in the early twenty‑first century.

It is time to heed this call for realism. A pragmatic approach under traditional national law would begin with clear rules that all Netizens can understand. It would anticipate a multifaceted strategy involving all three models of regulation, and would seek to take certain private personal activity off the table by recognizing its inherent legality.

While U.S. law has not yet explicitly stated that such activity is acceptable, a review of recent statutes and the cases interpreting these statutes provides an emerging pattern. Cases addressing the xeroxing of documents in a course reader context, for example, have ruled against copying services, but the rulings have been based on the fact that these services copied large portions of books without permission for the inclusion in commercial course readers. Much more limited copying of documents by private individuals for noncommercial purposes is distinguishable from these decisions, and commentators have suggested that the subtext of the rulings in both Kinko's and Michigan Document Services is that such private copying would indeed constitute fair use.⁴⁶

Controversies involving more recent high‑tech copying provide further support for such a pattern. The Sony case, discussed at length earlier in this chapter, expressly recognized the legality of at least certain types of private videotaping by individuals in their own homes. The AHRA, as we have seen, did the same for the taping of music from the radio and from other cassettes or compact disks by means of specific recording devices. The Rio case, RIAA v. Diamond Multimedia Systems, held that the manufacture and sale of this portable MP3 player could continue, even though a significant percentage of its buyers were apparently using it to download and play unlicensed copies of digital music files.⁴⁷

Read together, these cases and statutes suggest a pattern that favors the private personal copying of small documents and files for noncommercial purposes. Contrary to the views expressed in certain quarters, simple copying and downloading of small files is not automatically analogous to theft. Much of this limited private activity is already justified under recognized exceptions or under the fair use doctrine. It is important to recall that the first fair use factor focuses on purpose, and whether the copying is done for commercial reasons. The third factor focuses on the amount and substantiality of the portion used in relation to the work as a whole.

De minimis is a legal term that refers to the doctrine of de minimis non curat lex. Loosely translated, this doctrine states that the law does not take notice of, or concern itself, with very small or trifling matters. Provision is made under certain criminal statutes for dismissing offenses which are de minimis.⁴⁸ In copyright law, there are already provisions made for dismissing similarly de minimis infractions. Not only is such an approach embodied in the third fair use factor, but even the NET Act, which criminalizes certain types of digital copying, recognizes that a felony cannot be committed in this area unless the total retail value of the works that have been reproduced or distributed is more than $2,500. And Internet content providers are increasingly embracing a similar view. By mid‑2000, many Web sites included features that enabled online users to display "printer friendly" versions of files and to e‑mail copies of posted documents to "a friend. " These features recognize that not only will this activity take place anyway, but that the de minimis nature of the activity makes it acceptable under a variety of legal and policy‑based theories.

The egregiousness analysis set forth earlier in the chapter provides a good foundational basis for drawing clear lines in this context. Recognizing that the two broad types of behavior at issue here are downloading and uploading, and that the variables identified range from small amounts of noncommercial copying‑to large amounts of copying and distributing that may also be for commercial purposes, it is possible to identify a basic rule for private personal copying in cyberspace.

Under this rule, de minimis private personal downloading and forwarding of protected works in a networked environment without permission for noncommercial purposes shall not constitute copyright infringement. This exception to the five basic rights of the copyright owner should appropriately be codified in the federal U.S. Copyright Act.

Precise definitions would need to be worked out by Congress and included in this new statute. Downloading must be clearly defined, and must be distinguished from uploading. Many experts have recognized the importance of such a distinction, and the significant difference in the level of egregiousness.⁴⁹

De minimis downloading could refer to documents of less than ten pages, and to small multimedia files that are themselves portions of larger works. It would not include long articles, major portions of books, or copies of software currently for sale. De minimis forwarding might consist of no more than five to ten e‑mail attachments to friends. Private personal downloading and forwarding would refer to activity taking place on one's own private home computer or laptop for such purposes as personal enrichment or recreation.

In adopting such an exception to traditionally recognized rights, Congress must make it very clear that the formal "legalizing" of certain private personal day‑to‑day copying in cyberspace does not signal that anything goes. In fact, this rule should appropriately be accompanied by increased law enforcement, international cooperation, and code‑based adjustments in online architecture to help ensure that egregious reproduction, uploading, and distribution ‑which would now be precisely distinguished from legal downloading and forwarding‑are clearly viewed as unacceptable activity.

Of course, it is not likely that such an explicit new rule will by itself immediately result in major day‑to‑day changes. A combination of other strategies and approaches is essential, and careful collaborative planning by stakeholders ‑including Netizens‑that builds on this change in the law will be absolutely necessary. But such a rule promises to be an important beginning, and could go a long way toward restoring the balance that is integral to a fair and reasoned copyright law. It provides the benefit of a clear and precise rule that all online users can understand and embrace, transcending the overblown rhetoric that is currently much too prevalent both online and offline. Greater respect for the law may inevitably follow, accompanied by a gradual change in social norms over time that would benefit both the copyright owners and the public at large.

While the "legalization" of private personal de minimis copying will certainly not resolve the MP3 file sharing disputes, it can serve to help simplify the problem. Persons who only download limited numbers of music files that may have already been posted will no longer be lumped together with those who are illegally posting such files. Authorities and policymakers will be able to focus on the appropriate level of egregious conduct. And even those using Napster‑like technology can be distinguished in this manner. Since Napster, for example, has provided users with the option of choosing to access other files while not sharing their own, those who choose that option are also only downloading, and their actions‑assuming they are not sitting in front of a computer all day every day and downloading hundreds of files‑would not be considered copyright infringement under the new statute outlined above.

In any case, whether or not Congress adopts a statute such as the one proposed, it appears likely that in the near future it will be the courts‑and not Congress‑that have the first crack at resolving the overall Napster-Gnutella dilemma. The A &M v. Napster case, for example, focused in great part on the doctrine of contributory copyright infringement and the applicability of the Sony decision to these new sets of facts.⁵⁰ Courts will be required to sort out a range of legal and policy concerns, but in the end generic file‑sharing programs are not likely to be seen as any less legal than the Betamax or the Rio. Particular operations may be questionable, but with additional uses being identified for Napster‑Gnutella technology that go far beyond the simple sharing of MP3 files, some form of the technology will inevitably continue. Further adjustments in the law will necessarily follow.

It is important to view the record industry's MP3 position in historical context. From the time that audiotaping technology first developed, industry officials have raised the specter of alleged lost profits and have fought to limit the availability and use of products that would enable persons to record music in the privacy of their own homes. Although the industry has not won every battle, it achieved a major victory under the AHRA, when it essentially succeeded in preventing the widespread introduction of devices that could record perfect copies under digital audio technology. The RIAA position has remained unchanged over time. It continues to challenge new technological developments that empower private users in this area, and it always alleges that it has been negatively impacted financially by these innovations. Yet the record companies continue to make large sums of money, and music industry profitability overall has shown no concrete signs of abating.

Industry spokespersons have insisted all along that the record companies are losing millions of dollars as a result of MP3 file sharing by devoted online music lovers. It remains unclear, however, how the RIAA has calculated these numbers. Even if it is possible to estimate how many MP3 files might be downloaded over time, it is not possible to create valid and reliable data based on such estimates. There are a variety of reasons why an individual person might choose to download an MP3 file, and there is no predictable correlation between such de minimis action and loss of money by a record company. Downloading a copy of a song for private noncommercial use that may have been posted illegally does not necessarily take anything away from a recording artist or a record company. There is no comparison between such activity and CD piracy, where illicit companies make pirated copies of entire CDs for the purpose of making of profit. Such comparisons are not only disingenuous, but they ignore common patterns of use by MP3 afficionados today. Many users download tracks because they are instantly available, and may not have ever gone out and purchased the entire CD. Netizens, in fact, may already have the song‑or a version of the song‑on tape, CD, or DVD, but may wish to take advantage of the convenience of MP3 by also having a copy on their hard drives or in their portable MP3 player. And, even more importantly, sampling a copy of the song often motivates a user to go out and get the entire CD or DVD, and can generate a level of interest in the artist or the genre of music that would simply not have been there had it not been for the availability of the MP3 file online. Justice Stevens's prescient predictions in the Sony case regarding the potential for additional profitability in the entertainment industry through creative marketing and use of video technology is, of course, equally applicable here.⁵¹

By 2001, use of MP3 technology had become a mainstream activity, no longer limited to college students or members of virtual MP3 communities. Articles in major newspapers advising readers on features to look for in new computers often referred to MP3 files within the context of recommendations regarding speed and hard drive size. Advertisements for new wireless information appliances boasted of such new features as the ability to play MP3 files. In light of these realities, a reasonable solution to the range of MP3 controversies is not only necessary but inevitable. Legislators, policymakers, and jurists can already benefit from a wide range of impressive commentary on the subject, and some logical combination of recent proposals that maintain the balance between the rights of the creator and the rights of the general public might prove surprisingly effective down the road. One thing is certain, however. The MP3 file format and Napster‑Gnutella technology is not about to disappear. It may be supplanted by new portable wireless technology that facilitates copying and file sharing on a level that makes current features seem archaic and anachronistic, but what we are seeing today is only the beginning.

As discussed, these issues are likely to be addressed initially through federal litigation, which may very well take years to resolve. While a reliance on such a common law approach is eminently sensible and cannot easily be dismissed, many commentators continue to question the efficacy of litigation as a vehicle for resolving disputes involving cutting‑edge technology. Intellectual property law scholar Douglas Baird raised similar questions in the aftermath of the Sony case back in 1984. In an article entitled " Changing Technology and Unchanging Doctrine," Baird argued that "the failure of the Court to confront existing copyright doctrine and existing technology stems in large measure from the nature of litigation."⁵² New court decisions will prove useful, but they must inevitably be followed by relevant statutes and implementing policies that reflect the compromises that will be required down the road.

Notes:

45. H. R. Rep. No. 94‑1476, at 65‑66, quoted in Sony v. Universal, n.31. The court went on to say that "[t]he Senate Committee similarly eschewed a rigid, bright‑line approach to fair use. The Senate Report endorsed the view 'that off‑the-air recording for convenience' could be considered 'fair use' under some circumstances, although it then made it clear that it did not intend to suggest that off‑the‑air recording for convenience should be deemed fair use under any circumstances imaginable." S. Rep. No. 94‑473, at 65‑66 (1975). The latter qualifying statement is quoted by the dissent, post, at 481, and if read in isolation, would indicate that the Committee intended to condemn all off‑the‑air recording for convenience. Read in context, however, it is quite clear that that was the farthest thing from the Committee's intention.

46. See, generally, Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1996); Basic Books v. Kinko's, 758 F. Supp. 1522 (S.D.N.Y. 1991). Notable examples of legal commentary in this area include Ann Bartow, Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely, University of Pittsburgh Law Review 60 (1998): 149; Gregory K. Klingsporn, The Conference on Fair Use (CONFU) and the Future of Fair Use Guidelines, Columbia‑ VLA Journal of Law and the Arts 23 (1999): 10 1; Maureen Ryan, Fair Use and Academic Expression: Rhetoric, Reality and Restriction on Academic Freedom, Cornell Journal of Law and Public Policy 8 (1999): 54 1.

47. See RIAA v. Diamond Multimedia Systems, 180 F.3d 1072 (9th Cir. 1999). The RIAA and the Alliance of Artists & Recording Companies brought the lawsuit against Diamond Multimedia Systems, makers of the Rio, seeking to prevent the sale and distribution of this digital player. The lawsuit was not brought under traditional laws prohibiting copyright infringement, but under the U.S. Audio Home Recording Act of 1992 (AHRA).

48. Black's Law Dictionary (West Online Edition).

49. See, generally, William W. Fisher, Property and Contract on the Internet, Cbicago‑Kent Law Review 73 (1998): 1203, 1220, 1225‑1226. In this regard, it should be noted that Professor Fisher focuses extensively on suggestions that the legal system might be employed to restrict the ability of private individuals to contract in this area. Although highly relevant, this issue is beyond the scope of this book.

50. See, e.g., A&M Records v. Napster, 2001 WL 115033 (9th Cir. 2001).

51. One commentator, for example, outlined the following prospective scenario in mid‑2000:

At first, the spread of Napster and its clones will stimulate demand for all sorts of "midlist" music that the record industry itself has done a lousy job of promoting, and the music companies will cry over Napster's success all the way to the bank.

Over time ... a growing number of artists will question their own participation in a system that really doesn't serve the great majority of them. They'll begin to experiment with more direct musician‑to‑fan schemes‑not simply the sell‑more‑T-shirts approach mocked by artists, but serious new ideas for generating revenue for musicians: ideas like annual fan subscriptions, charges for early access to new music or special deals on collector's items, using online networking to boost attendance at shows and no doubt many others that I can't yet imagine.