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NOW with Bill Moyers

Transcript - Tollbooths on the Digital Highway

RICK KARR: The buzzword right now in the media industries is "digital". As in, Digital Cable, offering you five hundred channels of news and movies and sitcoms and music around the clock. As in, Digital Video Discs — DVDs — bringing you the clearest picture and the best sound. Media executives say "digital" means consumers have more options. Jack Valenti is chairman of the trade group the Motion Picture Association of America.

JACK VALENTI, CHAIRMAN, MOTION PICTURE ASSOCIATION OF AMERICA: We want to build a digital future that will win the admiration of American families, to give them wider choices of movies in a place they want to watch them, in their home, at their command, at the time they want it.

RICK KARR: The "digital" future isn't just for entertainment — it's affecting the way you receive news and books, too. It may sound like science fiction, but technologists say that within a few years, you'll get the latest John Grisham novel, your daily paper, and all your magazines on something that looks and feels like a sheet of paper but that changes the text every time you "turn the page." Pat Schroeder — the former crusading member of Congress from Colorado — is now lobbying on behalf of publishers as president of their main trade group. She says digital technology — the power of computers — promises readers a lot of new options.

PAT SCHROEDER: The simplest example of where we might go with this would be, say you're taking a trip. You may want two chapters outta one travel book, a chapter outta something else, your favorite poems from someone about that.

You may want some information on cooking. You just put that all together in your own little digital product. But you pay for the bits and pieces that you assemble.

RICK KARR: But amid the promise of a bright future a growing chorus of lawyers, librarians and educators says the promise comes at a price — that, for example, you might have to pay every time you want to read your favorite novel or listen to your favorite song. And, they say, you're losing freedom: to record a TV show and watch it later; to photocopy a page out of a book; to e-mail a news article to a friend. And someday, the critics say, you may no longer be able to check a book out of the library.

The central question in the debate over the digital future is...Do we want to treat, movies and music and books and even the news we read in the paper or see on television as products of commerce or as parts of our culture? Are they private property or are they public goods? Are they ways for some people to make money or are they things that enrich our society and the world we live in?

And the moneymakers are winning, according to Eben Moglen who teaches copyright law at Columbia University because the very technology that promises the digital future allows the media conglomerates that own record companies, publishers, Hollywood studios, and major news outlets to take control of the way people interact with culture. Moglen says things could turn out to be pretty dark for the typical American of the future.

EBEN MOGLEN, COLUMBIA UNIVERSITY SCHOOL OF LAW: She can rent music for her Saturday night party, a thousand songs, and they erase themselves again on Monday morning.

She can get an E-book delivered to her pocket, the newest Robert Ludlum novel and it will be there until she's read it once or twice or five times. But she can't lend it to anybody. She can't even print a page of it on a photocopier to show somebody to say, "Here, you'd really love this novel."

And not only has she lost rights that we take for granted, to make a private copy, to share, she's also lost privacy, because somebody knows about everything she reads and everything she watches and everything she listens to.

I call this giving people everything they want without letting them keep it. And it seems to me a pretty insidious form of culture.

KARR: It adds up to media companies controlling what you do and how you access culture. And it's already happening.

Now let's say you bring home a DVD, and you decide you want to skip over the trailers at the beginning. If the studio that released the disc doesn't want you to be able to o that, you can't. In other words, the studio can disable the fast forward button on your DVD player. And there's nothing you can do about it.

The technology that disables the fast forward button also keeps you from making a copy of the DVD to share with a friend.

Media executives say that the law should allow them to exert that kind of control — they own the rights to the material. But that makes your home computer THEIR enemy because it's an excellent copying machine. Every time you double click and open something, you're actually making a perfect copy of the original. It comes onto the screen for you to see — but you can send it onto the Internet for anyone to see. And media executives say that's stealing.

JACK VALENTI: A 12-year-old, with a click of a mouse, can send a movie hurtling to all of the five continents. So, it's a kind of piracy, a kind of pilfering and theft that causes more than a few Maalox moments to the movie industry.

We're trying to have some kind of sturdy protective clothing put on these movies.

RICK KARR: That "sturdy protective clothing" — so far — has been technology. But publishers, movie studios and record companies have also lobbied Congress to change the laws that govern "intellectual property." They want tighter control over it and they want to own it longer.

This discussion actually dates back to the Framers of the Constitution, who wrote protection for "intellectual property" directly into Article One, Section Eight where Congress is given the power "...to promote the progress of science and useful arts by securing for limited times to authors the exclusive right to their writings." Today, we know that idea as copyright.

Copyrights are exactly what the name implies — the right to make a copy of a book or a movie or a song or a photograph.

SIVA VAIDHYANATHAN, NEW YORK UNIVERSITY: This is what's known as the copyright bargain. We, the people, grant this monopoly power to a copyright holder. Because we feel it's important for the copyright holder to be able to make a living. Or, at least try to make a living.

In exchange, we get something back at the end.

RICK KARR: Siva Vaidhyanathan is a cultural historian at New York University who's written extensively on copyright.

SIVA VAIDYHANATHAN: The founding fathers clearly saw that without an indigenous literary industry, information industry, book industry, we weren't going to be able to operate as responsible democratic citizens. So, copyright was all about making sure that we were able to develop that sort of industry.

Vaidhyanathan says that that industry is now dominated by a handful of multibillion-dollar media conglomerates. In 1998, they successfully lobbied for a law that Vaidhyanathan says gives them unprecedented power to protect their "intellectual property." The Digital Millenium Copyright Act makes it a federal crime to diminish a copyright holder's control over digital books, music and movies. Media executives say the law is supposed to stop piracy.

JACK VALENTI: Well, it's not so much keeping control. It's to keep something from being stolen from you.

RICK KARR: Siva Vaidhyanathan says the law keeps Americans from doing things that have always been legal because it effectively eliminates a right known as fair use. That allows students and professors to quote things in class or scholarly papers. It lets scientists refer to one another's research and comedians parody TV shows. With fair use, we as journalists can show excerpts of copyrighted work — say, the nightly news — in order to comment on events without asking permission or paying a fee. And every American with a VCR is allowed to tape shows and watch them later. Under the new law, Vaidhyanathan says, that's no longer the case.

SIVA VAIDHYANATHAN: Fair use is one of the most important democratic safeguards in copyright.

Copyright could be used as an instrument of censorship. It wouldn't be very hard to imagine a world in which complete power over copyright can stifle anybody else from using a person's material for criticism or commentary or parody.

RICK KARR: Media executives say that's scaremongering — Pat Schroeder of the Association of American Publishers says she finds the public's ability to make copies at will MUCH more frightening because it could end up destroying the book business.

PAT SCHROEDER: Now, if suddenly you say when a library buys one digital copy they can then give it to the world and they can go out and make their own copy, we can visualize a world where you would sell one digital copy and that would be it.

RICK KARR: Publishers and other media companies have been aggressively enforcing their digital rights. In 2001, a corporate lawsuit shut down the music "file sharing" service known as Napster. Critics fear the new legal climate could eventually kill off the public lending library, as well.

Nancy Kranich is past president of the American Library Association.

NANCY KRANICH, PAST PRESIDENT, AMERICAN LIBRARY ASSOCIATION: In copyright law we have what we call the "first sale doctrine," and that allows us to actually physically purchase a book, for example. And we can do anything we want with that book. We might sell it, we can catalog it, we can discard it, we can use it any way we want, but that right within the copyright law is the basic right of how libraries exist.

RICK KARR: She says libraries are already losing their ability to loan things out because publishers don't sell digital books to libraries — they "license" them.

NANCY KRANICH: Most of the materials we're getting electronically we're signing licensing agreements for, and the licensing agreements set the contractual terms for how the public or how we will provide access to this information as opposed to the materials we were buying before basically followed what was in the copyright law. Those were the terms, were set.

RICK KARR: So what used to be a matter of public policy is now a matter of private contract.

NANCY KRANICH: Exactly.

RICK KARR: Kranich worries that everything that libraries can do today for free — loan a book to you or to another library, or allow you to photocopy a page — will cost money in the future, each and every time it happens. During a budget crunch, a library might not be able to pay the "rent" on a digital book, so to speak. And so the book will disappear from the library's collection.

Critics of the new copyright law say media companies have expanded their control in another way: by keeping things out of the public domain.

EBEN MOGLEN: The public domain is all the creative works that are available to everybody because copyright on them has expired or never was entered in the first place.

The King James version of the Bible, all the plays of Shakespeare, MOBY DICK, the recordings made at the very beginning of the 20th century by Paderewski, of the music of Chopin.

Whatever is not under copyright now is available for us to make what we wish of it.

RICK KARR: Corporations can borrow from the public domain, too, to make profits and to add to the culture.

SIVA VAIDHYANATHAN: You can look at Disney films over the course of the last century, and — CINDERELLA, MULAN, ALADDIN, SNOW WHITE. These are all works that came out of the public domain. They've been reinvigorated and rolled out in new forms and they've made a lot of money, and they've made a lot of people smile.

The public domain is a rich source of creativity. Congress, though, has stopped up the replenishment of the public domain, ironically, at the behest of the Disney Corporation.

RICK KARR: Over the decades, Congress has extended the term of copyright — from 28 years to 56 years and then to the life of the author PLUS 50 years in 1976. Still, media companies feared they'd lose some of their most valuable "property" to the public domain. For instance: "Steamboat Willie".

The first screen appearance of Mickey Mouse — made its debut in 1928 and was supposed to go into the public domain — and become freely available to everyone — next year. Eben Moglen of Columbia University says Disney and other studios lobbied Congress to extend copyrights.

EBEN MOGLEN: I think that the copyright extension happened precisely to make sure that all of the works of mass communications culture, remained in the hands that already owned them, and did not return to the public on the schedule the copyright law would otherwise have provided.

RICK KARR: In 1998, Congress voted unanimously to extend copyright protection by an additional twenty years. In the two years prior to that copyright extension, Disney and its employees contributed more than $1.2 million to federal political campaigns; film, television and music companies gave more than $16 million.

And there's this new development: a legal challenge to the copyright extension law went all the way to the Supreme Court. Just two days ago, the Court gave its stamp of approval to Disney and other Hollywood studios. "Steamboat Willie" won't come into the public domain until 2024 at the earliest.

Siva Vaidhyanathan says copyright law is supposed to benefit creative people — artists, musicians, and writers. But ironically, he says, the recent changes have made it harder for them to mix and match the ideas and images that they find in the culture.

SIVA VAIDHYANATHAN: They're wondering if the terrain has changed on them. They're wondering if they can do what Andy Warhol did. And unfortunately, the answer is, less and less. You can do less and less.

We are in serious danger here, because we have altered the law. But just as importantly, we've altered the culture. Actually, more importantly. We've taken the fun and the play out of our culture. And that is going to create a creative dark age, if we're not careful.

RICK KARR: There's yet another school of thought on copyright in the digital future: That the law and technology don't matter, because people are going to do what they will. And that that may not be so bad for business.

JIM GRIFFIN, CHERRY LANE DIGITAL: I don't think it's inconsistent at all to point out that in the history of intellectual property, the things we thought would kill us were later the things that fed us. And that's been true almost uniformly.

RICK KARR: Jim Griffin is president of the Los Angeles music company Cherry Lane Digital. He says there's a historical example of a new gizmo that the media industries found threatening — the VCR. In the early 1980s, film industry lobbyist Jack Valenti said that home videotaping would destroy Hollywood.

VALENTI [IN 1984]: For if what creative people produce cannot be protected, if the value of what they have labored over and brought forth to entertain the American public cannot be protected by copyright, then the victim is going to be the American republic and the inevitability of a lessened supply of a high quality expensive high budget material where it's investment recoupment is now in serious doubt.

RICK KARR: But Hollywood was wrong: Ten years later, videotape sales and rentals generated about the same amount of income as box offices and movie attendance was rising.

JIM GRIFFIN: When the video cassette recorder comes out, it's lawyers and technologists that try to deal with it. The lawyers file a lawsuit against Sony. And at the same time, technologists try to find a way to control it, too. Someone develops a video cassette that has a ratchet in it, so that you can't rewind it and watch it more than once.

And ultimately, both of these groups fail. The lawyers in historic retrospect, serve only to delay the arrival of billions of dollars of new income. And the technologists never come up with a way to control the video cassette that's effective.

RICK KARR: Griffin says it's happening again: Consumers, he predicts, will always find a way around corporate efforts to control the new digital technologies.

JIM GRIFFIN: There is no solution to these problems that does not involve government. I wish it were otherwise.

RICK KARR: Griffin favors a radical approach: Laws that would establish entirely new ways of paying authors and creators while at the same time guaranteeing open access to consumers.

But Pat Schroeder prefers laws that would let the industries roll out the digital future that they want.

PAT SCHROEDER: The copyright industries have greater exports than automobiles, than aircraft, than agriculture. But Americans don't know that. So, they yell that "Oh, well, Congress is protecting the copyright industry." Well, Congress protects agriculture, automobiles, and others. And aircraft, for heaven's sakes. Of course they ought be to protecting the copyright industry.

RICK KARR: But critics worry that publishers, film studios and record companies — and their millions in campaign contributions — will drown out the public interest when legislators consider future copyright laws.

JIM GRIFFIN: Equalizing access to knowledge is one of the hallmarks of a civilized society. Depriving people of access to knowledge based on the size of their parents' wallet is a hallmark of a despotic society.

SIVA VAIDHYANATHAN: We're allowing the content holders, the content producers, to have a remarkable amount of control over the manner and amount and re-use of all this material. We don't want to build a cultural environment, in which the media companies have that much control over our daily lives.

RICK KARR: Vaidhyanathan wonders who will remind Congress that the public has an interest in the copyright bargain, too — and that what's good for commerce isn't always what's good for culture.