February 2002 Public Policy Computer Graphics Column

Introduction

Laurie Reinhart

In this column, we follow-up on the panel and course presented by the Public Policy Program at SIGGRAPH 2001. A reminder: David Nelson has made the complete SIGGRAPH 2001 policy tutorial course notes and, separately, the references available at: http://www.siggraph.org/pub-policy/pdf/PPCourseNotes-S2001.pdf (course notes) and http://www.siggraph.org/pub-policy/S2001CourseNoteURLS.html (references).

A report on the panel was written by Ben Wyrick and is on the reports website, http://www.siggraph.org/conferences/reports/s2001/tech/panels13.html maintained by YON - Jan C. Hardenbergh. That report is reprinted here with permission of the author.

As mentioned in the November 2001 column we are proposing more course material on policy issues for SIGGRAPH 2002 and a follow-on to the S2001 panel. Excerpts from the proposals are presented below.

Next Myles Losch reports that the financial problems of DSL broadband providers have spread to cable Internet providers. This is not likely to improve the rate of adoption of broadband services.

Finally, Myles Losch comments on recent activities by computer-law professor Lawrence Lessig in the area of copyright, including a debate at USC with Jack Valenti, chief spokesman for the U.S. motion picture industry.

``Beyond Copyright: The Brave New World of Digital Rights Management``

Ben Wyrick
August 16, 2001

Dan Burk summed it up: "The Internet is the biggest copy machine in the world." Digital technology catalyzed by the Internet is allowing a greater dissemination and propagation of knowledge than ever before. And much of that information is intellectual property, some of which is protected by U.S. copyright law.

Copyright law is currently in a state of flux, due to recent legislation such as the Digital Millenium Copyright Act (DMCA), passed in 1998.

What are the rights of creators, distributors, and end-users of material under the DMCA and how have those rights changed since the U.S. Constitution was penned? Do we have a reasonable system for protecting everyone's rights under current law?

These were the questions discussed in a panel titled "Beyond Copyright: The Brave New World of Digital Rights Management," chaired by Robert Ellis, SIGGRAPH Public Policy Program Chair.

Also on the panel were Dan Burk, a University of Minnesota law professor, Deborah Neville, an attorney who has represented authors and Hollywood studios, Barbara Simons, ACM Past President and ACM U.S. Public Policy Committee Co-Chair, and Sarah Stein, a media professor at North Carolina State University with a background in documentary film.

The Constitution calls for copyright protection to "promote the progress of science and useful arts." It states that copyrights are to be of a limited term, after which time they revert to the public domain. According to Burk, the idea is for the public to benefit from ideas, but under DMCA, distribution middlemen, record companies, and publishers are reaping the benefits.

For example, DVDs are protected against duplication by the Content Scrambling System (CSS), a weak method of encryption. A consumer purchasing a DVD remains unable to copy that DVD even after the copyright has run out, in essence keeping the DVD out of the public domain forever, a violation of original copyright law.

Enter DeCSS. DeCSS is a computer program which circumvents the encryption on DVDs and allows them to be copied or viewed on alternate operating systems such as Linux. It could be argued that DeCSS restores the spirit of early copyright law, returning the legal concept of "fair use" to DVDs.

The purpose of fair use, according to Burk, is to allow "enough play in the joints" between the needs of the creator and the needs of the user. Fair use allows the duplication of copyrighted material for academic or research purposes, reviews of a product by critics, and other rights. Fair use walks the thin line between protecting the rights of the artist and allowing legitimate uses of a purchased product by the consumer.

"We wouldn't have academic institutions the way we know them without fair use," Stein says, referring to the heavy reliance universities and libraries place on fair use. The panelists argued that DMCA seriously erodes the doctrine of fair use and encouraged audience members to become politically active in issues of intellectual property.

Another change DMCA has brought in copyright law is the introduction of criminal penalties for reverse engineering and other forms of infringement. Formerly the penalties were civil only, involving fines. Now you can go to jail. And supplying someone with the ability to circumvent encryption is illegal, even if the protected material is not copyrighted.

According to Stein, such provisions benefit distributors such as record companies, as opposed to the musicians themselves. Burk believes the erosion of fair use under DMCA may be unconstitutional due to conflicts with freedom of speech.

"The system is out of control," warns Burk, who believes the spirit of the DMCA is out of line with what the public thinks is fair. Neville points to profit as a motive for restricting fair use, and attributes the rise of illegal copying and hacking to unfair prices for media.

Simons spoke of the positive side of peer-to-peer file sharing networks. She views them as empowering the artist, who would then rely less on record companies for distribution. Hence the record companies' aversion to such networks.

"DMCA is the best legislation money can buy," said Burk, who called attendees to become the Rosa Parks of the copyright movement and take back control of intellectual property from Bill Gates and Jack Valenti. Simons echoed the call for civil disobedience, but warned that violating the DMCA could have serious repercussions. She added that professional societies like the ACM can help lead the way to workable legislation.

The panelists agreed that a positive change in current law needs to take place: "People should not be thrown in jail for writing code," said Simons.

SIGGRAPH 2002 Course and Panel Proposals

Bob Ellis

Again we are proposing policy-oriented courses and a panel for this year's annual conference. Responding to the call for more policy material and the Courses Chair's interest, we are proposing a sequence of three tutorial courses. As I write this final proposals have just been submitted. The titles, speakers and statements for each of the courses are:

Course Title: Introduction to the Impact of Public Policy on Computer Graphics (Course 1 in Policy Sequence)

Names of Speakers: Robert. Ellis and Barbara Simons, with additional material prepared by Myles Losch.

Expanded Statement: As the proliferation of personal computers and access to the Internet have increased the public's use of and access to computer graphics, researchers, developers and practitioners will find that policy issues and the law increasingly affect our professional lives. After a brief overview of computing and policy issues in general the course will explore issues of particular relevance to computer graphics. This course will prepare the attendee for the follow on policy courses on intellectual property/digital rights management and broadband Internet services/digital television. The material in this course will not be repeated in the other courses.

Course Title: Intellectual Property, Copyright and Digital Rights Management for Computer Graphics (Course 2 in Policy Sequence)

Names of Speakers: Dan Burk and Barbara Simons

Expanded Statement: The history and legal precedents of copyright will be reviewed and implications of recent treaties and laws such as those developed and administered by the World Intellectual Property Organization (WIPO) and the Digital Millennium Copyright Act (DMCA) in the US will be presented. Implications of digital rights management systems such as the Secure Digital Music Initiative (SDMI), the DVD Content Scrambling System (CSS) and the Content Protection for Recordable Media (CPRM) will be discussed.

Course Title: Broadband Internet Services, Digital Television and their Impact on Computer Graphics (Course 3 in Policy Sequence)

Names of Speakers: Robert Ellis and Myles Losch

Expanded Statement: Why has the rate of adoption of broadband Internet access by the general public slowed? Why have alternative Digital Subscriber Line (DSL) providers been going out of business at alarming rates? Why hasn't digital television had much of an impact? What happened between the time a few years ago when the future of high definition television was rescued from the analog world with considerable fanfare and now? This third course in the policy sequence describes why these much anticipated advances have been slow in coming, what the near term future looks like and the negative impact on computer graphics.

We are also developing a panel proposal. Jean Camp from the Kennedy School of Government at Harvard and I have been putting together a proposal for follow-on to the highly successful SIGGRAPH 2001 panel. The panel continues to explore the theme of intellectual property. The panel is tentatively titled "Copyright and the Single Author".

Extracting from the panel statement:

At SIGGRAPH 2001 the first Panel Session organized by the SIGGRAPH Public Policy Program, "Beyond Copyright: The New World of Digital Rights Management", presented a first look for the SIGGRAPH conference audience at the changing world of intellectual property in the digital age. The panel explored issues surrounding the use of MP3, the Secure Digital Music Initiative (SDMI) and the DVD Content Scrambling System (CSS) and the implications of the Digital Millennium Copyright Act (DMCA). Panelists represented the fields of technology, law and content development.

Digital Rights Management standards and systems are being developed for a ubiquitous global market for digital content. What models of copyright and information ownership are embedded in Digital Rights Management systems? What are the implications for the single independent author? Imagine creating the perfect back arrow that becomes universally used. Imagine the issue in protecting the digital copies of "Harry Potter and the Sorcerer's Stone". How can the same mechanism protect small creators and blockbusters?

The moderator will present copyright as a function of technology, by tracking its creation and major changes. Then an overview of copyright as it stands today, including introduction to the major legal laws and court challenges.

Given this overview a series of speakers will introduce different perspectives on the current copyright debates. Two legal scholars and two people with backgrounds in engineering and technology will debate. The questions to be answered include: how can the combination of law and technology lead to an environment ideal for the individual creator; how might the protections for the small creator and the institutional investor in content differ; and what is the role of independent creator in the current debate over copyright? While much of the discussion about copyright is based on the ideas of author or inventor, in fact much of the legislation and action depends on the rights of the owner. Publishers and employers are rarely mentioned in the debate about content ownership and management. Yet the Internet not only allows everyone to become a publisher, it compels those in the graphics profession to be publishers. How well will the interests of the individual creator who is self-published but does not own his or her own domain and site be served by the various proposals embodied in differing laws and differing digital rights management systems?

``DSL Woes Spread to Cable Modems: Bankruptcy Cuts Service to Half-Million Homes``

Myles Losch

In August 2001 this column noted how business failures among broadband Internet providers had disrupted, and raised the price of, DSL service over phone lines. Residential and small business users of fast Internet access (so useful for transmitting digital imagery) suffered a greater setback in December 2001 from the bankruptcy of Excite@Home, the largest U.S. provider of Internet access over cable television lines.

Several major North American cable TV companies had long relied on Excite@Home for their subscribers' Internet service. But the impact fell most abruptly on some half-million AT&T Broadband cable modem customers, whose only immediate alternative was to use far slower dial-up modems over phone lines.

They, along with millions of other users, had to cope with sudden changes in their e-mail addresses, as well as the loss of information storage and other supporting services from Excite@Home.

This episode followed other setbacks for broadband Internet service. While continuing to grow at a pace that mature industries would envy, the subscriber population expanded in 2001 (albeit from a larger installed base) at a significantly slower rate than earlier predicted. Factors contributing to this included:

(1) Higher monthly fees, which (as we noted last August) followed a decline in competition among broadband Internet providers.

(2) Deteriorating economic conditions in many developed nations, causing some consumers to see fast data service as a luxury to be deferred, or even abandoned.

(3) The failure of many Internet-related companies, whose employees were natural users of (and word-of-mouth marketers for) high-speed Internet access.

(4) A lack of "killer applications": compelling uses to drive consumers' migration to the broadband Internet.

On this last point, entertainment industry officials have argued (somewhat self-servingly) that greater online availability of their broadband content would spark mass adoption of high-speed digital access. This assertion is typically offered as justification for ever-stronger copyright laws (so that copyright holders would open more of their film and tape vaults to remote audiences).

Much of the thinking by many broadband Internet applications providers sees the public mostly as passive recipients of packaged works. The Internet, though, has always been a vehicle for interaction, both among users and with content. Some analysts question whether a 1950-style "couch-potato model" will lure empowered 21st-century audiences. And this issue (as we've noted in past columns) has policy implications well beyond the market for fast Internet access.

As we went to press, the U.S.' National Research Council was preparing to release a book-length study of that market, entitled "Broadband: Bringing Home the Bits" (ISBN 0-309-08273-0; see http://www.nap.edu/books/). We hope to review the NRC study in a future column.

Lessig on Copyright

Myles Losch

Stanford computer-law professor Lawrence Lessig has until recent years been best known for work outside the intellectual property field. But of late his attention has increasingly turned to problems of copyright in cyberspace, which (due to its significance for digital imagery) has also been a continuing theme of this column.

In October 2000 he launched what is evolving into an annual autumn event: a series of public debates on digital copyright against Jack Valenti, who for 35 years has been the U.S. motion picture studios' chief lobbyist. The first such debate was at Harvard Law School (where Lessig formerly taught; see http://cyber.law.harvard.edu).

The Annenberg School for Communication at the University of Southern California hosted the second debate, in November 2001 (see http://ascweb.usc.edu), which this observer was fortunately able to attend. It was, as noted below in more detail, a spirited and informative exchange between formidable advocates, on an important subject that has drawn growing public attention.

Enhancing the timeliness of last November's debate was a series of judicial and legislative events that autumn, related to digital copyright. In the U.S. Senate, pressure from the computer industry had derailed efforts (by Valenti and his allies) to force architectural constraints on computers and software, the better to protect against copyright infringement. This initiative was accurately described (by Harvard professor Jean Camp et al.) as the "Turing Machine Prohibition Act," and European analysts warned that it could yet re-surface in the EU or elsewhere.

On the judicial front, several decisions emerged from U.S. lawsuits over the limits of digital copyright. Although far from unanimous, the courts more often than not sided with copyright holders against the free-expression rights of software authors, publishers, researchers et al.

Because these decisions are appealable (and most if not all of them seemed certain to be appealed), their ultimate significance was unclear. But as this column noted in August 2001, governmental claims of power to control the writing and publishing of software are very broad, extending far beyond copyright issues. Thus all authors of software would be wise to follow closely the further stages of this litigation.

During the USC debate, Valenti often proved himself an unyielding proponent of his industry's economic interests. For example, the duration of copyrights (which Lessig is litigating to shorten) was a major point of contention, and Valenti's preference that copyrights never expire was clear, notwithstanding an explicit prohibition on this in the U.S. constitution (Art. I, Sect. 8).

Lessig, on this and other points, appealed (as do many conservative jurists) to the "original intent" of the constitution's framers as a guide to interpreting that document. But Valenti (a professional publicist and non-lawyer) assailed 'originalism,' as judicial liberals often have.

One of the debate's more entertaining episodes addressed the videocassette recorder, which Lessig saw as a model for technologies that influence copyright policy. He quoted Valenti's decades-ago congressional testimony, analogizing home VCRs to the Boston Strangler, and noted that Valenti's industry now relies on VCR tapes for a significant part of its revenue.

Valenti replied that when the U.S. Supreme Court legalized such machines, it considered their use only for time-shifting of broadcast (not cable TV) programs, which would be erased after viewing. He added that infringing VCR tapes cost his industry billions of U.S. dollars annually.

Prof. Lessig's new book is "The Future of Ideas" (published 2001 by Random House; ISBN 0-375-50578-5). Readers are encouraged to seek out examples of Lessig's and Valenti's writings, speeches, etc. for further guidance.