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« Back to Is the Net Killing Copyright? main page    Transcript for: Is the Net Killing Copyright?THINK TANKANNOUNCER: Funding for Think Tank is provided by the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, and the Smith Richardson Foundation, and the Donner Canadian Foundation. (Musical break.) MR. WATTENBERG: Hello, I'm Ben Wattenberg. The rise of the Internet and the new economy has brought gloomy predictions for many businesses of the old economy. The recording industry is only the latest to contend with the challenges and opportunities raised by the Internet. Some say publishing houses and film studios will be next. All are facing the threat posed by the easy availability, free of charge, of their copyrighted material online. Is copyright dying, can it be saved, must it be saved? To find out Think Tank is joined by: Robert Atkinson, director of the Technology and the New Economy Project at the Progressive Policy Institute; Julie Cohen, associate professor of law at Georgetown University Law Center; and Mike Godwin, author of the book Cyber Rights, Defending Free Speech in the Digital Age. The topic before the house, is the net killing copyright, this week on Think Tank. (Musical break.) MR. WATTENBERG: Until recently it was fairly difficult to find music on the Internet. The recording industry, through legal action, successfully prevented web sites from making copyrighted material available. Though individual users perhaps had hundreds of songs on their PCs, there was no easy way for other users to access them. What changed all this was a company called Napster. With the aide of Napster's software, users can now download music directly from other user's computers. The recording industry and some, but not all, of the artists they represent are furious. Napster is being sued for facilitating mass market piracy. But, the issues go far beyond music. All intellectual property is seemingly threatened by the Internet. With the increasing availability of broadband, which offers faster connection speeds, and greater data capacity, users will soon be able to download movies as easily as they download music now. Some observers welcome these developments, hailing the Internet's potential to liberate information. Others are worried that creativity will dry up if artists and authors are not paid for their work. At stake are billions of dollars, the future of the Internet and, indeed, the future of information. Lady, gentlemen, thank you for joining us. Let's go around the room quickly just with a fast question, those of us who are semi-illiterate in this field have been seeing news magazine covers about Napster and so on and so forth. What's up, what's new, let's begin with you, Rob. MR. ATKINSON: What's new is in the old days there were two ways to get illegal songs, one was you could get a web site and you could put it up there on the web site, it's relatively easy to find those songs. If you're the content owner, or recording industry you go and you sue them, and you have them take it down. That's what happened to Mp3.com recently. MR. WATTENBERG: The people who used Mp3 were sued by the copyright owners, the recording companies. MR. ATKINSON: A web site that you actually could go to and get songs for free called Mp3.com, now there's a settlement that they have to pay the various recording labels, because they were posting illegal music online. MR. WATTENBERG: Right. Okay. MR. ATKINSON: The other way you could do it, you could just trade it with each other, and you could find each other, and I could give you a file, and you could give me files. MR. WATTENBERG: And was that legal? MR. ATKINSON: That was not legal either, but it was too small to really worry about. It's too hard to find, there aren't that many people. What changed with Napster is Napster now is not really -- it's 10 million users, they predict 100 million users by the end of the year, and there's no there there. Napster is really just a facilitative software, it lets me go to your hard drive and take whatever files I want, copy whatever files I want. MR. WATTENBERG: With my permission. MR. ATKINSON: With your permission. You have to be logged onto Napster at the time. MR. WATTENBERG: With my implicit, if not explicit permission. MR. ATKINSON: No, your explicit permission. You have to be -- you have to sign up for Napster, you have to download the software, and you have to be on the system. MR. WATTENBERG: And that means that any of those 10 million people can have access to any of the songs that I have on my hard drive. MR. ATKINSON: While you're logged onto the system. MR. WATTENBERG: While I'm logged on, okay. What's new, Julie, what's new about all this? MS. COHEN: Well, in a sense what's new about Napster is old again, because if you go back to the even older days you could make cassette tapes of your friend's albums, and nobody knew that you were doing it, and nobody could even find you. Now, obviously the scale has changed in a substantial degree, because as Rob said, there could be 10 million people logged on. But, what Napster is seeking to do, in a sense, is restore the older status quo, which is that people could trade files without being subjected to some sort of centralized control. And I would argue, and we'll probably get to that, that that's a very valuable new-old thing to be doing. MR. WATTENBERG: It is a valuable new-old thing to be doing? MS. COHEN: Yes. MR. WATTENBERG: We are going to come back to that. Mike? MR. GODWIN: Well, I think what we're seeing with the debate about Napster, and the Internet, and about intellectual property on the Internet is in some sense a debate about the law and about copyright. But, in some sense it reflects the kind of social panic whenever you have a new technology that vastly empowers individuals to do things that they couldn't do before. There were similar social panics regarding things like television, and the telephone, and automobiles. MR. WATTENBERG: And the VCR. MR. GODWIN: Well, the VCR and the photocopying machine are really the best examples here, because the content industries, we didn't call them that then, but the content industries believed that cheap copying technologies mean that their revenue model is going to go away. MR. WATTENBERG: In other words, if I had written a book and somebody liked chapter 12 and wanted their class to read it, they could put it on a Xerox machine, make 20 copies of chapter 12, pass it out. In theory that was illegal, but it was done all the time. MR. GODWIN: Well, it might not even have been illegal, because the Copyright Act provides for some kinds of copying and uses of copyrighted works. But, the publishers were really worried. Maybe if there are photocopiers in libraries it will be possible for people to never have to buy a book. And as it turned out, the predictions of the death of copyright were premature at best, and probably unfounded. What we tend to find is that as these technologies are integrated into our society, the copyright based industries manage to survive somehow. MR. WATTENBERG: I was told that what distinguishes this particular situation is that these copies, unlike the other examples you talked about, are perfect, and costless. MR. GODWIN: I think that there's some truth to that. Napster, which I've used by the way, and I don't think I have any illegal copies -- MR. WATTENBERG: The cameraman here, before the show, I had not seen Napster, he said, I have it. He has his little computer, and he punched it right up for me, and we played a song. MR. GODWIN: Now, I have some Mp3 files on my own hard disk on my laptop, and I don't think any of those songs are illegal copies, but they are not licensed copies. In other words, what I've done is I've taken copies from Napster of music that I already owned, or I've sampled music and then bought the album. But, in any case, they're unlicenced copies, but not illegal we think under the Copyright Act. MR. WATTENBERG: Rob, he says it's all social panic, you I don't think believe that, do you? You think there's something serious -- MR. ATKINSON: There's two main issues, I agree with you, this is very different. When you went to Xerox a book, you had to pay for the paper, you had to pay for the Xeroxing, you got a pretty lousy copy that was very thick. When you went to record a VCR tape you have to buy a tape, put it in there, wait two hours for it to record. This is, you go to your computer, you find the song you want, you press the button and it's downloaded onto your computer or what's called a Rio Player, your Mp3 player, and it's completely free. It's very different technology. This is a quantum leap beyond the old types of copying technologies. MR. WATTENBERG: And it isn't just Napster. Napster is sort of the latest of a group of these sorts of things. MR. ATKINSON: Napster is the latest, but it's also in some ways the most important, and the most threatening, because as I said, there's no company there, if it's on their hard drive. The second reason about that is so you could copy stuff in that past, that doesn't make it legal, that doesn't make it right. You might have been able to do it in the past. And to say that, well, the industry is panicking, I'll tell you one industry, one firm that's panicking now and that's Emusic.com. Emusic.com is the right way to get Mp3 files that are copyrighted. You go there, you pay 89 cents a song, and you can get pretty much any song you want. It's a legitimate company that is trying to sell Mp3 files. MR. WATTENBERG: So the artist who wrote the song, or played the song, and worked with the recording company to make a good production of it gets paid? MR. ATKINSON: They get paid. MR. WATTENBERG: They get paid. MR. ATKINSON: Mp3.com just laid off I don't know how many workers, they just announced a layoff. And the reason they announced a layoff is because people are going to Napster and not going to Mp3.com. So I agree -- MR. WATTENBERG: Mp3 had worked out an arrangement with the recording industry where you did have to pay? MR. ATKINSON: Correct, you had to pay and then they would remit the money, or a share of the money to the recording label, who would then submit a share to the artist. MR. WATTENBERG: There is at least a nuance of difference here, you don't -- MR. GODWIN: I don't really agree. First of all, with regard to Emusic.com, I mean, it's not the only dot com that's discovered that it hasn't quite figured out how to make money on the net. And whenever that happens you want to be able to point to somebody else and say, well, it's not my fault that I didn't come up with the right business model, it's somebody else's fault. And I think that's what is happening here with regard to Emusic.com, you know, blaming Napster. I think one of the things that you have to keep in mind is that this is really not just legal in the sense that you can make all sorts of unlicenced copies, even under the Copyright Act, it's actually socially beneficial, and even beneficial to the business. And I'll just focus on the business, briefly. I've made Napster copies of songs that I didn't buy, but I've played them for other people who did go and buy those records. And I'm pretty conscientious about that. MR. WATTENBERG: But, you can't tell -- I mean, you may be right, and you may be wrong. But, you don't have the authority to tell the copyright owner how to run their business. I mean, you can suggest that this is a good idea. Julie, maybe you can tell us the genesis of copyright and patent. I mean, it goes right back to our Constitution, is that right? MS. COHEN: The copyright and patent authority does go right back to the Constitution, but the Constitution doesn't tell us a whole lot about what a copyright or a patent should look like. MR. WATTENBERG: But, what does the language say? I mean, this is -- I know Thomas Jefferson, because he was an inventor, he was big into getting this into the Constitution. MS. COHEN: The language says that Congress shall have the power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their writings and inventions. MR. WATTENBERG: Exclusive right. MR. GODWIN: That exclusive right is a defined right, a right with limits. And as always -- MR. WATTENBERG: Time limits. MR. GODWIN: Not just time limits. MS. COHEN: Not just time limits, no. Authors have enjoyed certain defined exclusive rights, for example, to make copies, to distribute copies, to publicly perform their works. But, those rights have been balanced by certain limitations, such as the fair use doctrine that says certain copies are not infringing, and something that we fondly called the idea expression distinction, which means that copyright only protects expression and not ideas. MR. WATTENBERG: You want to blow that all away? You just want to say everybody should have access to everything, that that's socially useful, to hell with the Constitution. MR. GODWIN: No, that's absolutely not what I'm saying. But, if you listen to the record industry, or the movie industry they'll tell you that's -- MR. WATTENBERG: Or Rob. MR. GODWIN: Or Rob, they'll tell you that's what I'm saying. But, what I'm really saying is that there are balances in the copyright scheme, and the balances are not just about remunerating artists and writers and creators and publishing companies, they're also about the social benefit of having the stuff available. If a school teacher can freely make a copy of a newspaper article or a magazine article, and distribute it to her class for the purpose of today's lesson, we think that's a social good, even if no one has paid for the additional copies of that. MR. WATTENBERG: That's a good example. The New York Times posts its edition every day for free on the net. And if you want to make a copy of that for your class, that's fine, you can do that. The Wall Street Journal has opted for a different business model, and if you want to get access to the Wall Street Journal site you have to pay to get access to the Wall Street Journal material. Now, if the teacher wants to distribute 30 copies of the Wall Street Journal material, at the least she will have to have one subscription. MS. COHEN: Under the situation that you've just laid out for us, somebody would pay the Wall Street Journal, probably the school's library would pay the Wall Street Journal $20 a month. So it's not as though what's being demanded is that the Wall Street Journal should just give its content away for free. But, instead what's being claimed is that some institutions, such as schools and libraries, do pay for copies, but then they have always been allowed, historically under our copyright laws, to do a certain amount of unlicenced copying, and they've been allowed to do that, because of that part in the language that I said -- that I recited to you from the Constitution about promoting progress. It's felt that educational uses that are unlicenced do promote progress. And I think it's important when you say the recording industry, or the publishing industry says, we're just claiming our constitutional rights. That's not really the case. The Constitution doesn't say you have the right to a particular business model. MR. ATKINSON: First of all, there's a big distinction between a school or a library or a scientist, there is clearly fair use, and I don't think anybody -- maybe the recording industry wants to get rid of fair use, but we certainly don't. I mean, clearly there is a realm of fair use that I think reasonable people agree with. But, Napster is way beyond fair use. There's 10 million users. There's a recent survey 24, 25 percent of them admit that because of using Napster they either buy fewer CDs or they buy no CDs, and the longer they're on Napster, the more likely they are to do that. So this is cutting into people's purchases, which is clearly not fair use. With regard to this issue or progress, the real threat of Napster is that it's going to limit the progress. The big great thing about Mp3 is that we can get rid of the CD manufacturers, we can disintermediate going down to the record stores. You don't have to pay all that money for all those middlemen, you can just download your song directly. But, that model won't work if Napster is there, because the record industry is not going to do that. MS. COHEN: Well, I think it's a little more complicated than that. I think the recording industry actually is making it very easy for people to want to use Napster, because of the high prices that are charged for CDs in stores, and because initiatives like Emusic.com are very much not the mainstream of what the recording industry is trying to do. Instead, the recording industry has mobilized behind something it calls the Secure Digital Music Initiative, which is a project to make files totally copy proof, so that you can't even casually share files with your sister, or your friend. MR. WATTENBERG: Let me go to that, because there are firms under the generic title of digital rights management, they will encrypt a text document so that if I put it out on the web, if you want it, you get the first page or so, and then up comes a credit card thing that says, if you want to read the rest of it you've got to pay the credit card. So if as we go forward, if the music companies, the movie companies, the text companies encrypt their material, you have a situation where the whole world can use everything, and the artists and the creators still get paid. MR. GODWIN: Well, but that's a much worse world than the one we live in now in this respect, if I buy a paperback book, I can give it to Julie after I've read it. And nobody really objects to my doing that, and there's no payment to the publisher or the artist when that happens. We think it's okay, we think it's actually beneficial for people to be able to read books, and then give them away. And even, by the way, they can sell them, which I'm not advocating resale of copyrighted material generally, but I think you can do that. I'm a copyright holder myself, so I have some sympathy with the copyright industry. MR. WATTENBERG: Your new book, you're getting royalties on it. MR. GODWIN: I am getting royalties on it, any minute now. MR. WATTENBERG: You got an advance against it. A publisher put up money and said, Mike, you've got a good idea. MR. GODWIN: You might ask why, if I could stand to make more money do I favor a system in which you don't have to pay me whenever somebody gives a copy of my book to somebody else, and the answer is, apart from wanting to be paid as an author, I want information to flow pretty freely in the society I live in. I think that a democratic society requires that. And I think that the balances that have been struck in the traditional copyright system tolerate a large amount of free distribution of information. This is not an anti-copyright stance, this is really about the history and traditions of copyright when I tell you this. MR. ATKINSON: This isn't about restricting fair use so that people in schools can't read or copy things. This is about 10 million, soon to be 100 million people on the Internet basically stealing music, that's what this is all about. MR. GODWIN: Well, you're assuming that they're stealing music. The Supreme Court pointed out in 1985, and as other courts have pointed out, intellectual property is not like your car or your backyard, it's something that's created by statute, and the exclusive rights that you have are rights with limits, and rights that are balanced against the public good. MS. COHEN: The definition of stealing is taking something that belongs to somebody else, and we have a lot of law that says certain rights don't belong to the copyright owner, like the rights to fair use. So it's not stealing if the use is fair. MR. ATKINSON: Let me make one point, there's a distinction between going to Napster, you buy a CD in a store and you want to play it on your Rio Player while you go out jogging, and you don't have a CD burner, so you can't put it in digital form. So you go to Napster and you download it. One might argue that's fair use, because you've already bought the thing, and you're just transferring, and we let that go on with cassette tapes and movie. But, to go to Napster, which the vast majority of users do, and there are surveys about this, the vast majority of Napster users, they haven't bought the CD, they haven't bought the song, they're just going there and downloading it. There is a survey of CD stores around college campuses in this country, and the average loss is -- I mean, there's one CD store that lost 70 percent of sales. MR. GODWIN: That study is sponsored by a copyright management company. MR. ATKINSON: So it must not be true? MR. GODWIN: It might not be true. MR. WATTENBERG: Hang on one second. There is something that I want to talk about. What is the larger meaning of this whole debate, not just Napster, not just records, but all intellectual property, all copyright material? I mean, you are sort of sketching out two different world views. You see that whole new Internet world out there that makes it easier and cheaper to know more about everything. When you talk about socially beneficial, as I understand it, that's what you're talking about? MR. GODWIN: I'm not going to be pie in the sky and say that every technological breakthrough is a benefit. But, think it's mostly beneficial, and I think the harms are pretty much -- they're almost grounded in superstition. MR. WATTENBERG: You are saying, this is a little Utopian, and it can kill the goose that lays the golden eggs, is that basically what you're saying? MR. ATKINSON: It's a little Libertarian, it's the wild, wild West. The Internet is a different space, so we don't have to have laws for it, and I think that's not true. MR. WATTENBERG: As this develops, if it goes in your direction, which is ever greater access to ever more material, is this going to create -- I mean, you see it so often in the magazines, a new world? MS. COHEN: I don't know about a new world. I think that it's possible that it could. The recording industry is very much setting up a false choice for us right now, and the reference to a Libertarian, wild, wild West, no law Internet, I think encapsulates the false choice. On the one hand, you have Napster and that's no good, because people are supposedly stealing, which we've disputed here, and then on the other side you have pay per view, and every single time you want to play or read, or listen to, or view something, you have to pay a fee. And it's being presented to us as an either or choice, and neither of those choices is the way copyright law currently works. Copyright law allows authors to get paid, but doesn't say that every time someone wants to read, or listen to, or view a work the author is entitled to extract a tithe for that. And I think as long as we perceive it as a false choice, then the answer, at least to the recording industry is obvious, it's either or we get to control everything you do. I don't really like either of those worlds a lot. I want authors to get paid, but I don't want somebody to control every time I want to read, or listen, or view something, and I certainly don't want some copyright management company creating a big database that would list data about the all the stuff that I listen to. MR. WATTENBERG: Okay. Last question, just around the room, starting with you, Rob. Is copyright as we know it dead? MR. ATKINSON: No, absolutely not. It's going to be just as alive now as it was 20 or 30 years ago. I agree with you, Julie. I think that there's a risk of total pay-per-view, excluding all fair use. I don't think that's the world we want to live in. But, I also don't think we want to live in a world where there's 100 million Napster users who are principally downloading songs for free without paying. And I think we've got to figure out what that balance is. I think that's what the debate needs to be about. MR. WATTENBERG: Is copyright dead? MS. COHEN: I don't believe it is. We may need to do some creative thinking about how to design the technology that will let people have the kind of access privileges online that they have always had offline, and that will let libraries continue to function, and serve their clientele in a manner other than pay-per-view. That's hard, it depends how you design the system, but we can do it. MR. WATTENBERG: Is copyright dead? MR. GODWIN: I don't think copyright law is dead, I think it is evolving, and I think that's guaranteed. But, the direction in which it evolves has something to do with the policy choices we make right now, and if we're not careful we'll throw the baby out with the bath water. There are unlicenced copies that should be blocked, if we can block them. I don't approve of artists not getting paid for people enjoying their works, unless it falls within those fair use categories. But, we need to make the choices in such a way that we don't first class all unlicenced uses as piracy, and that we don't lose the benefits of the balances struck in the Copyright Act. MR. WATTENBERG: It is -- we have to get out now, but it seems to me listening to this discussion that it is clear that in the years to come more people will have more access to more information at lower costs than ever before. Thank you, Julie Cohen, Rob Atkinson, and Mike Godwin. And thank you. We at Think Tank encourage feedback from our viewers via email. For Think Tank, I'm Ben Wattenberg. ANNOUNCER: We at Think Tank depend on your views to make our show better. Please send your questions and comments to New River Media, 1219 Connecticut Avenue, Northwest, Washington, D.C. 20036, or email us at thinktank@pbs.org. To learn more about Think Tank, visit PBS Online at pbs.org. And please let us know where you watch Think Tank. This has been a production of BJW, Incorporated, in association with New River Media, which are solely responsible for its content. Additional funding is provided by the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, and the Smith Richardson Foundation, and the Donner Canadian Foundation. (End of program.) Back to top  Think Tank is made possible by generous support from the Smith Richardson Foundation, the Bernard and Irene Schwartz Foundation, the Lynde and Harry Bradley Foundation, the John M. Olin Foundation, the Donner Canadian Foundation, the Dodge Jones Foundation, and Pfizer, Inc. ©Copyright Think Tank. All rights reserved. 
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