access to knowledge

in the age of intellectual property

edited by
Gaëlle Krikorian and Amy Kapczynski

Z O N E B O O K S • N E W Y O R K

2010
The publisher wishes to acknowledge the generous support
of the Open Society Institute.

© 2010 Amy Kapczynski, Gaëlle Krikorian, and Zone Books

zone books
1226 Prospect Avenue
Brooklyn, NY 11218

This work is published subject to a Creative Commons by-nc-nd

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Frontispiece: Graeme Arendse, Chimurenga Library

(photo Stacy Hardy).

Library of Congress Cataloging-in-Publication Data

Access to knowledge in the age of intellectual property /

edited by Gaëlle Krikorian and Amy Kapczynski.
p. cm.
Includes bibliographical references.
isbn 978-1-890951-96-2
1. Intellectual property. I. Krikorian, Gaëlle, 1972–
II. Kapczynski, Amy.

k1401.a929 2010
346.04’8—dc22
2009054048
A Copyright Thriller versus
a Vision of a Digital Renaissance

Sarah Deutsch

On April 1, 2008, a mysterious piece of new legislation appeared in the e-mail

in-boxes of those who follow copyright developments. The e-mail warned of a
pending bill entitled The Assuring Protections and Remedies for Intellectual Prop-
erty Laws Act of 2008. Given the Old Faithful–like eruptions of new copyright bills
in Congress every year, this bill seeking familiar additional “protections and rem-
edies” appeared to be genuine. The bill contained all of the standard formatting
and headers one finds in copyright legislation. It contained the typical “findings”
section, established a new department of intellectual property security, touted
new “enhancements” to copyright rights, new enforcement powers, and additional
technological protection measures. It was only upon a slightly deeper look that one
figured out that this latest bill was actually a clever and elaborate April Fools joke.
The Assuring Protections and Remedies for Intellectual Property Laws Act (the
“APRIL Act”) parodies many of the new rights and remedies inserted into count-
less copyright bills introduced over the past years. For example, the recently intro-
duced sixty-nine-page Pro IP Act proposed creating a “White House Intellectual
Property Enforcement Representative” and revamping the Department of Justice’s
Intellectual Property Enforcement Division. The APRIL Act instead proposes creat-
ing a Department of Intellectual Property Security (DIPs), along with a Computer
Hacking and Intellectual Property Program at DOJ (CHIPs). Hence, the bill’s critical
Section 104 is entitled “Coordination of CHIPS and DIPS.” The bill also picks up on
the legislative debates surrounding the Grokster decision,1 codifying new forms of
secondary liability for “attempted infringement,” inducement, and adding a new,
even deeper and more obscure layer of “tertiary liability.”
In a nod to the issue of copyright-term extension, Section 204 of the bill pro-
poses a term of perpetuity minus one day. The U.S. Constitution requires that a
copyright exist only for a “limited term,” yet the Supreme Court recently refused

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 to provide any further insight on what a “limited term” means, although it has
been expanded to the life of the author plus seventy years. And in an acknowl-
edgement of those bills that seek to expand the scope of copyright law, Section 209
extends copyright to broadcasting, databases, and fashion designs (with original-
ity to be determined by an “Originality Czar”). Many of these noncopyrightable
areas that seek protection under a copyright umbrella are already adequately pro-
tected under existing law (for example, databases are adequately protected under
contract law and theft of broadcast signals under a wide array of federal and state
laws), and they thrive without the need for additional copyright protection. The
mock bill acknowledges new “self-help” rights for copyright holders, including the
right to disable, interfere with, block, divert, or otherwise impair the unauthorized
exercise of any of their exclusive rights. For example, someone could find that files
have been removed from their computer or that tracking devices have been placed
on their hard drive under the auspices of “self-help.” The Federal Communications
Commission is empowered to adopt “Dragon Shield” copyright security standards,
which, among other attributes, are required to be “invincible.” In reference to both
the old proposed “Hollings Bill” and the Digital Millennium Copyright Act, it cre-
ates liability for any person who tampers with or undermines the Dragon Shield.
The final provision repeals the Copyright Act’s prohibition against the federal gov-
ernment owning copyrighted works and bears a bold copyright notice in the name
of the United States Congress.

the authority : a worst-case scenario

This legislative parody makes sense only because, as the old adage goes, behind
every joke is a grain of truth. It was appreciated by those of us familiar with the
recent history of copyright law, because it hints at our fears about the future of
copyright. As a group, we have been trained to imagine the worst-case scenarios,
so when reading the provisions in the APRIL Act, we could easily move beyond
this parody and concoct a future where copyright policy in fact has gone mad.
One could imagine a bad science-fiction thriller movie, The Authority, that
would include a sole “Copyright Authority” who is much more powerful than any
of the copyright departments suggested in recent legislation. Our imaginary Copy-
right Authority (known as The Authority, or perhaps just “C”) would be virtually
omniscient when it comes to detecting copyright violations. In the opening scene
of the movie, the camera would pan on “C” sitting in an office in a high tower
behind a spotless modern desk, wearing the requisite black turtleneck, gold chain
with shining copyright symbol, and reflective sunglasses. Copyright violations
would stream across a floating electronic billboard like the Wall Street stock ticker.

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 In this movie, The Authority has found it necessary to declare its first virtual
copyright war and would control the strategy, aided by an army of people and
robots. Just as in the movie Minority Report, an army of mechanical spiders would
crawl the Internet, scurry through the walls into suspects’ homes and comput-
ers, and search for infringements, taking whatever “self-help” measures might be
necessary. Perhaps they might destroy files and equipment, automatically deduct
fines and penalties from bank accounts, or publicize the faces and names of viola-
tors on huge screens like those in Times Square. The movie would not have a sat-
isfying element of conflict and violence unless the spiders also had the power to
“Terminate” (with a capital T) those that the Authority deems the worst offenders.
Of course, in our movie, due to years of “clarifications” to existing laws, what-
ever protections existed for individuals or third-party intermediaries long ago
have disappeared. The new laws have created seamless, one-click primary, sec-
ondary, and tertiary liability. Elders reminisce about their old iPods, Tivos, and
home networks as sad relics of the past. The old-timers recall that they used to
be able legitimately to stream content to different rooms of the house, space shift
recorded programming, and create libraries of time-shifted content. All the com-
panies who produced the old innovative products and services would have long
ago been sued out of existence. Most remaining black market “antiquities” would
have been seized and destroyed by the spiders. The Copyright Authority would
approve all new devices and administer all Internet services. The average citizen
would have almost no societal memory of the concept of privacy or reasonable
uses of copyrighted works, because rights and penalties for violations were doled
out like small electrical shocks to a submissive public.
The movie, however, would need a protagonist. Perhaps the protagonist
would be some deeply recessive genetic mutant who chooses to reject the rules.
It would be convenient if our protagonist’s great-great-grandfather might have
left an undiscovered cache of equipment, devices, and communications networks
as weapons to fight back against The Authority. And, of course, we would need
to figure out how to insert the requisite car chase scene, with the Authority and
squadron of spiders in hot pursuit.
But, this overexaggerated, nightmarish yarn would never pass muster in a real
Hollywood movie script. Note that in the real movie Be Kind, Rewind, the protago-
nists dangerously create and film their own retakes of famous Hollywood movies
after their entire inventory of movie rentals is accidentally erased. Their innova-
tive derivative works become huge word-of-mouth hits in their low-income com-
munity, and their video store’s business begins to thrive. But, the plot does not
permit this kind of creative success to continue. The studio executives show up to
enforce the protagonists’ copyright violations with a steamroller, destroying all the

a copyright thriller versus a vision of a digital renaissance 609

 tapes as the neighbors sadly look on. Fortunately, the protagonists of our movie
use their new-found talents to create their own original copyrightable film that
unites their community and celebrates their history at the same time.
It’s hard to imagine that our copyright thriller would ever become anything
more than frightening imaginary and unmarketable plot. But unlike Be Kind,
Rewind, the controversial copyright issues at the heart of this script could not be
salvaged by the sudden appearance of a steamroller. Fortunately (at least to date),
however, most of the worst-case copyright scenarios that appear in legislation
never come to pass. While copyright continues to expand through new bills intro-
duced each year, the worst-case scenarios usually do not survive the U.S. legisla-
tive process unless they reflect the input of all stakeholders.

only connect: a best-case vision of a digital renaissance

Let us now envision a completely different future—a best-case scenario. In this
figment of the imagination (a mere idea not subject to the protections of copy-
right), copyright policy fights have long been abandoned as futile. All industry
players, including copyright owners, on-line intermediaries, device manufacturers,
software companies, and other players are completely engrossed in the new task
at hand: devoting every possible resource to meet the exploding demand for new
content, products, and services. The copyright policy disputes of prior decades
now seem irrelevant, and there is money to be made. Users are also too fully occu-
pied creating their own content and availing themselves of an endless supply of
readily available content to waste their time illegally downloading. In a nutshell,
everyone is too focused on creating, distributing, and using content to see any
need to infringe copyrights, sue each other over them, or seek punitive legislation.
In this scenario, in the more technologically advantaged societies, where every-
one now is a copyright owner and creator, all would gain newfound respect for
copyright. And in the developing world, citizens would more slowly, but increas-
ingly gain access to technology, computers, and broadband Internet access and
become increasingly interested in developing their own unique cultural content and
creations. At the same time, all would recognize that increased interdependence
requires flexibility to allow others to make liberal uses of copyrightable works to
build upon and add value to existing works. (Our scenario, conveniently, will fast-
forward through at least a decade of “unpleasantness,” where the rules governing
who gets paid, how much, and what uses are considered fair and reasonable get
ironed out.) The notion of “user-generated content” would become an oxymoron,
because the new digital renaissance would encourage everyone to create music, art,
films, literature, and new forms of derivative works that defy the imagination. The

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marketplace supporting this digital renaissance would profit equally from the dis-
tribution of creative content in both the physical and the virtual worlds.
Broadband speeds and services would continue to grow and with them supply
an endless array of interactive devices. Users would continuously send streams of
content across multiple platforms and devices. Almost any item capable of con-
taining electronics would become a new mobile device. Innovative and ubiquitous
payment systems would develop and along with them interfaces to interact with
our constant stream of content. Home networking would extend beyond the home,
and words such as “time shifting,” “space shifting,” and “format shifting” would
seem as obvious and antiquated as the “Information Superhighway.” Although dig-
ital rights management (DRM) and enforcement options would still exist, the need
for onerous DRM or expensive enforcement actions would not be nearly as great
in a world where the marketplace is thriving.
Large content companies would be thriving. They would profit from strong
partnership arrangements with Internet service providers, device manufacturers,
and other suppliers. Consumers would earn new income streams from individual
partnership arrangements with content companies and distributors.
Companies would share revenue with the public and reward the public for cre-
ating, distributing, and promoting new content in unique one-to-one communica-
tions. Notably, the ability to share content in a small community means that entire
specialized on-line communities could generate content and earn income in both
the physical and the virtual worlds. Groups might be devoted to a particular movie,
book, or music or might sell unique versions of derivative works. Profit-sharing
arrangements would benefit the creators, copyright owners, and users alike. And
of course, the newfound societal approval for creating derivative works would
now mean that we would laugh more (and live longer) as the best new parodies of
the century were celebrated and shared.
Our technology and content sectors would also embrace the business notion
of “creative disruptions.” Companies would understand that they must adapt to,
rather than fight changes that threaten their business models and seek innovative
ways to profit from those changes. For example, in the old days of telecommunica-
tions, criminals sought to profit from schemes to steal long-distance, international,
or cellular telecommunications services. As communications companies shifted to
selling generous buckets of minutes at reasonable and compelling price offerings,
this encouraged increased usage of their services, and the need to steal suddenly
seemed irrelevant. This is, after all, the history of the telephone industry, too: In
the old days, long-distance or “toll calls” were very expensive, so people used to
steal phone service through black-box devices and other schemes. They no longer
do that, because today, the cost of calls or the Internet is low enough that it’s not

a copyright thriller versus a vision of a digital renaissance 611

 worth anyone’s effort to steal. Likewise, in the copyright industry, content own-
ers would explore selling volumes of content through compelling and attractive
bundles, including buckets of downloads at fast speeds, and package them with
additional content extras not otherwise available. Gradually, the need to download
illegally would appear outmoded and irrelevant.
Our digital renaissance would borrow from the rallying cry in a famous work
of literature. In Howard’s End, E. M. Forster begins the novel with the call “Only
connect . . .” and carries that theme throughout the book. Howard’s End teaches the
lesson that fulfillment comes when people with different values—those focused
on spiritual values and those concerned with material goods—ultimately connect
and engage with each other: “Only connect! That was the whole of her sermon.
Only connect the prose and the passion, and both will be exalted, and human love
will be seen at its height. Live in fragments no longer.”
In our scenario of a digital renaissance, the power to connect requires the need
for a robust and healthy broadband market, innovative new devices and services,
and the ability to generate and distribute attractive content in a robust marketplace.
The “only connect” scenario might be the unifying theme linking content owners,
users, distributors, device manufacturers, and others in a more harmonious future.

notes
The opinions offered here are solely those of the author and do not reflect the opinions or
views of Verizon Communications.
1 Copyright liability applies to those who are either found primarily liable (direct infringe-
ment) or secondarily liable (contributory or vicarious infringement). The Grokster decision
explored the concept of whether one could be found secondarily liable for “inducing another
to infringe,” for example by taking purposeful steps in advertising infringing conduct. The
APRIL Act imagines that the chain of secondary liability should be further extended down to
indirect recipients of copyrighted works in the distribution chain.

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