Digital Copyright and the Progress of Science
Jessica Litman
Keynote Address
Joint Conference on Digital Libraries 2002
Portland, Oregon, USA
July 14-18, 2002

Let me start with a truism: Networked digital technology has transformed
information and the way we interact with it. Digital information is dynamic rather than
fixed. What we think of as “documents” can change constantly. That’s challenged ournotions of what it means to archive material.
Digital information is ubiquitous rather than scarce. Digital information is
extraordinarily accessible. If I have a question, I don’t need to make up an answer that
seems plausible or reason out what it’s likely to be. I don’t need to go to the library andask the reference librarian if I can see the library’s only copy of a reference book that
ought to have the answer. I can just run upstairs to my computer and look it up on theweb.
Digital information is shared. Ten years, even five years ago, it was conventional
to talk about the Internet as a tool for disintermediation. Authors and musicians would be
able to use digital networks for sending stuff directly to their readers and listeners.
Remember Stephen King’s The Plant?
There’s some of that. People post content on their websites for the rest of theworld to view. Academics exchange drafts of scholarly papers that way, and independent
musicians and composers make recordings of their work available for sampling anddownload. The “blog” (or weblog) is an increasingly popular art form in which people
post an ongoing, public diary of things they find interesting and want to share. But, while
we’ve seen a small but appreciable amount of direct distribution, there’s even more peerto-peer distribution. Napster is a specific case of what’s happening to information
resources all over the Internet. Someone has the recording I want. If I can find her,
she’ll share it with me. I can copy it and pass it on. Someone knows the answer to myquestion. If I can find her, she’ll tell me. I can learn it and pass it on. Someone has seen
the source I want to consult. She can tell me where to find it.
Ten years ago, not only Washington but the entire journalism biz believed that theburgeoning digital network (which went by the name, back then, of the “National
Information Infrastructure”) would develop into a 500 channel interactive televisionsystem, with “interactive” meaning that it would incorporate a method for ordering andcharging purchases and receiving targeted advertising. There are a number of businesses
out there which are continuing to try to shove the Internet in that direction, but the factthat it isn’t yet anything like a 500 channel TV is largely because of the way that lots andlots of people have come to interact with information. We’ve discovered that if you makeit quick and easy, people love to look stuff up. People want to know how old Steven
Spielberg is. They want to know the history of early radio. They want to know what
traveling musicians wore in 15th Century Europe. They want to know how to make
Shaker Lemon Pie. They want to know what the Constitution actually says.
If it’s quick and easy to do so, they’ll look it up. The rate at which people haveadopted the Internet as their research tool of choice is astonishing. People find the easy
availability of all that information empowering. They really get in to discovering new
stuff. And they love to share – they share information, sources, sites, newspaper articles,
movies, music. The system has been evolving as we watch: all that interaction is leading
to more information and better information and more accessible information, more
complete and deeper archives, wider ranges of divergent sources.
There’s a wonderful Internet archive named the “Wayback Machine” at
www.archive.org that allows you to view old versions of documents on the World Wide
Web. If you check out earlier incarnations of the pages you visit most, you can actually
see some of the ways we’re all getting better at this.
Most of us in this room would agree that this is the most important development
in information space in our lifetimes. I suspect that one would need to go all the way
back to the invention of the public library to find another development as significant.
Networked digital technology transforms information spaces. That posesparticular challenges for information policy. Consider archiving. How do you archive
dynamic information that is changing all the time? Do you save all of it? You can’t.
How do you pick? Think about access. Digital information exacerbates problems posedby the digital divide. It intensifies the assault on individual privacy and anonymity.
The library tradition is deeply committed to giving access to anyone from off the street
above a certain age and to refusing to keep track of what any individual reads. Is it
appropriate to restrict access according to who is doing the reading? Is it appropriate tokeep track?
And, of course, networked digital technology implicates copyright law, which is
why I’m here.
Did I hear a groan? My guess is that most of you are pretty frustrated withcopyright. Copyright is frustrating for everyone who knows even a little bit about it, but I
expect that the folks in this audience find it more frustrating than most. Some of youcome to the digital library community as librarians and information specialists.
Librarians have been fighting on the front lines of the copyright wars for more than 10
years. They “got it” before anyone else – including many copyright lawyers. Librarians
have watched copyright lose its moorings and evolve from a legal system designed toencourage the broadest possible distribution and use of works of authorship to a systemdesigned to restrict distribution and use in the name of the copyright owners’ supposed
right to “control” their works. Every time you turn around, the copyright law haschanged again, for the worse. Some of you come to this community as software
designers. For many of you, the most frustrating thing about copyright law is that
nobody will give you a straight answer about what the law says. The policy debate is thepolicy debate, but whatever the politicians do, you can design a system that mirrors thelegal system of rights. If you could just get someone to give you a coherent account ofwhat the rules are, you could just code them. Fair use, for example. If that means, say,“it’s okay to make a copy for yourself, but you can’t copy the copy, or pass it around” forexample, you could code that. But, every time you ask, some lawyer says something
like: “It’s just not like that. It’s deeply contextual. There are rules, of course, but I can’t
explain them in a way you’d understand.”Well, actually it depends on the lawyer. If you ask a lawyer who works for therecording industry or the film industry, she might tell you that the law says that copyrightowners have the right to control every single copy of their works, period, and anythingelse is piracy. That, at least is easy to code. But it isn’t the law. Copyright owners havenever been entitled to control every copy of their works. That would defeat the whole
purpose. The idea of copyright is to give authors an incentive to create new works anddistribute them to the public, so that everybody else can use them, learn from them, buildon them, and thus, as the Constitution puts it, “promote the Progress of Science anduseful Arts.” By “Science,” the founders meant knowledge. Copyright is supposed to be
designed to advance and spread knowledge. It incorporates a balance between incentives
for authors and limitations on the control they might be tempted to exert. We can havelending libraries, archives, museums and concordances precisely because the copyright
law puts significant limits on copyright owners’ control of their works. The copyrightsystem is intended to encourage the production and wide dissemination of knowledge.
Since copyright is intended to promote the progress of science-as-in-knowledge,
then it would be reasonable to expect the copyright law to encourage the sort of sharing
that’s transforming our digital information space; to encourage it actively. If you read
any recent news stories about copyright, though, what you read is that so and so has used
copyright law to stop this, to prevent that, to turn this thing off and shut this other thing
down and to prevent something else entirely from even getting off the ground.
By crying “Piracy!” at every opportunity, copyright lobbyists have done a pretty
good job of selling much of the nation on the idea that either the current law entitles themto control all copying, distribution, performance or display of their works, or that it needs
to be changed –right now-- so that it does enable them to exercise that control. Further,
they are making the absolutely outrageous demand that systems need to be designed in a
way that makes that control easy to exercise and as difficult as possible to defeat. By“systems”, I’m not talking merely about proprietary file formats and digital watermarks.
I’m talking instead about designing personal computers, hard drives, televisions, radios,cell phones, routers, IP protocols and the Internet itself to enable copyright owners toprevent any uses they don’t want to permit. Which, as I said, is a right they don’t happen
to have under even the most expansive construction of current law.
In the past, whenever a new information or entertainment technology has
appeared, it has developed along whatever lines made the most sense for it first, and thenwe’ve figured out a way to pay copyright owners some money to compensate them foruse of copyrighted works. Early movies didn’t get permission before writing screenplays
based on stories; early radio didn’t pay for the music it played. Early cable TV didn’t pay
anybody for anything. Neither did the manufacturers or operators of jukeboxes,

photocopiers, or videocassette recorders. Eventually, the new technologies matured, andfigured out ways to pay for copyrighted content.
This time, copyright lobbyists insist, is different because digital is different.
Networked digital technology enables anyone to make a million perfect copies and send
them off to a million of one’s closest friends. Networked digital technology is different
because it has the potential to cause unprecedented harm. So digital systems need to havecopyright enforcement built in – they must be designed so that people can’t use them toinfringe copyright owners’ rights. If we permit digital systems to be designed in order tomaximize their usefulness, their stability, their accessibility or their flexibility, we run arisk that those systems may end up being useful, stable, accessible or flexible, but may
facilitate widespread digital copyright infringement. That would be an intolerable result.
Those arguments have proved to be surprisingly persuasive. How many of you
are designing your digital library systems not by asking what design is going to be themost elegant, the most useful or what design will enable the most flexibility orinteractivity, but by asking instead how to design it to accommodate the demands ofproprietors that you control access to, copying of, and use of content they claim to own?
It isn’t that everybody agrees that copyright owners do have or should have that control:it’s that it is becoming increasingly clear that they won’t go away until they are satisfied
that they have that control. Thus, the frustration: you’re willing to code it, if someone
would only tell you what the rules are.
But we can’t. Not “won’t” but “can’t”.
We don’t actually know what the rules are yet. It may be a number of years
before we find out. Meanwhile, if some people in the copyright community can persuade
everyone to design digital systems to allow publishers and record companies and movie
studios to control how their works are used, it won’t matter what the rules really are. So
long as the systems are designed to allow copyright owners to enforce their preferences,
the system in practice will function in practice as if the law said whatever they wished it
to say.
It seems as if someone files a new digital copyright lawsuit every week. It seems
as if Congress is debating a number of proposed laws that you hear described by different
folks as likely to bring the apocalypse down on us all. It’s very nasty out there. But for
all that action in the courts and in Congress, there are not very many answers.
There are a few lessons we can draw from the copyright wars of the last ten years:
First, we don’t know who owns what legal rights in copyright works in connection withdigital networks. Second, in the face of that uncertainty, copyright owners are insistingthat the law gives them and should give them control over every appearance of a digital
copy of any work anywhere. Third, it is as a practical matter nearly impossible todetermine with any certainty who has the authority to grant the permissions you need inorder to make a work available over a digital network. Finally, demands for excessive
control over the exchange of information threaten to undermine essential values that haveshaped our information policy for more then 200 years. Let me take those in turn:
We don’t know what the law is.

Copyright lawyers may talk as if we’re certain, but we don’t know what the law is,
only what we hope or fear that it will turn out to be. The current copyright law derives
from a statute that’s more than a quarter-century old. There are amendments here andthere to deal with particular digital issues, but the general law setting out the scope of
copyright owners’ rights was written before anyone was thinking about networked digitaltechnology. That statute, as many of you know, gives copyright owners the rights tomake copies, to distribute copies, to make derivative works (or adaptations), and to
perform or display the work to the public. It then subjects those basic rights to pages andpages of exceptions, like the first sale doctrine, and fair use, the provision allowing
libraries to make interlibrary loan copies, and the provision allowing restaurants to play
the radio for their customers.
How the language applies to digital networks is still unclear. Is storing a copy of awork in a digital archive making a copy? Is retrieving it making another copy? Is a new
copy made every time someone views the file? Is allowing someone to view the file a
distribution to the public? Is it a public display? What about if the patron gains access tothe file over the Internet? Is that a copy? A distribution? A public display? What about
the copies made in the computer servers between the patron and the digital archive? Arethey copies too? Are they distributions? Are they public displays?
Those are good questions. We copyright lawyers don’t know the answers yet. The
statute is old; the Congress that passed it didn’t have this stuff in mind. This problem ishardly unique to copyright law. The legal system’s usual approach to interpreting an old
statute, and we have many, is to litigate the uncertain questions so that our courts can tell
us what the answers are. But that hasn’t been happening here. Instead, what we’ve seen
is an epidemic of copyright litigation that runs defendants out of business before the cases
can get to trial. The lawsuit ends, but the legal questions remain unresolved.
Let’s take the most famous copyright case of the 21st century, the Napster case.
That case generated a couple of judicial opinions, but it never made it to trial. The Courtof Appeals for the Ninth Circuit ruled in the Napster case that the 70 million or so
individuals who were using Napster were breaking the law. That got a lot of press. What
didn’t get a lot of press was this: the court also ruled that Napster wasn’t necessarily
liable for what its users did. Napster had a good argument that even if Napster users werebreaking the law, Napster itself was doing nothing illegal, because it fit squarely within astatutory exemption. The appeals court said “Napster may very well be right about that”
and sent the case back to the trial court to decide on those defenses at trial. Napster also
argued that the folks suing it didn’t in fact own the digital rights to the music. The court
was going to decide that at trial too. Napster ran out of money before the trial could evenget started.
Napster, at least in the beginning, didn’t want to pay anything. (Later it offered to
pay handsomely, but the recording industry had already decided that it needed to bury
Napster with a stake in its heart.) Several other online businesses tried to pay royalties atthe outset, but found themselves on the wrong end of a lawsuit instead. I’ll mention twoof the most famous.
A music site named MP3.com negotiated and paid royalties for a license to stream
recorded music to consumers who demonstrated that they owned the CDs the recorded

music was from. MP3.com rolled out the service. Music publishers and record
companies sued MP3.com, arguing successfully that it broke the law when it copied CDs
it had purchased into file formats required for streaming so that it could perform themusic under the license it had paid for. The court ruled that MP3.com couldn’t makethose copies simply because it had paid for the right to perform the music; rather, it
needed separate permissions from different copyright owners to copy the music in orderto perform it.
A Canadian site named “ICraveTV” applied for a statutory license underCanadian law to stream local Toronto broadcast TV signals over the Internet to viewersin Toronto. The site was shut down in Pittsburgh by U.S. movie producers who argued
that streaming might be legal under the law of Canada, but it was illegal under the law of
the U.S. Unless ICraveTV could guarantee that nobody in the United States could use aruse to gain access to its webcasts, it had no business taking advantage of its rights underCanadian law. The court in Pittsburgh agreed.
I could go on telling stories about a very long list of cases. They reveal a pattern:
Some Internet upstart comes up with a compelling idea and a threatening business model.
This upstart is sufficiently well-capitalized to be worth slapping down, but not enough towithstand scorched-earth litigation. Copyright owners file a lawsuit. The upstart raises a
couple of compelling legal defenses. Then it runs out of money and goes out of business.
Case closed.
Here’s the bottom line: we don’t know the answers to the legal questions, andwe’re unlikely to resolve them soon.
Every copy needs a license
In the face if that uncertainty, the position I’ve heard from publishers, movie
studios, record companies is, in essence, that digital is different. A digital copy on a
network is a copy and, they say, it’s also a distribution and, it’s also a public performanceor display. So, for every copy of every work (including those computer copies that no
human ever sees) you need a license to make the copy and a license to distribute copies
and a license for the public display. Moreover, digital copies have the potential to beshared with a million close friends. Digital copies are as good as the original. All of the
exceptions and limitations on a copyright owners’rights, like the first sale doctrine or fairuse, apply to analog, not digital. Digital is different.
Take fair use. Most people in the United States have a pretty firm seat-of-thepants sense of what fair use is: Noncommercial use for criticism, analysis, research,education, parody, private individual copying are all fair uses. Ask a lawyer for the film
industry or the recording industry or the music publishing industry or the book publishingindustry what fair use is, though, and you’d get a different story: fair use is not a right atall, but a limited narrow privilege to use a little bit of a work in circumstances in whichyour use will cause no harm whatsoever to any of the copyright owner’s interests, and,moreover, there’s no practical way to ask permission, either because your infringement
is de minimis or because it’s critical. The idea that there’s some right to make private
copies, they continue, is a myth.

What about the Sony Betamax case? Didn’t it hold that it’s fair use when
consumers tape television shows? Well, okay, they say, there was the Sony case, but,
the Sony case was wrong, and anyway, the only thing the Court actually held was that
consumers could make temporary analog copies of free broadcast TV in order to “timeshift” them and then erase them. It would be a mistake, they insist, to try to expand theprivilege to encompass any other kind of work (pay TV, books, records), or any otherkind of use. There is emphatically no general right or even privilege to make a personal
copy. But in any event, they say, there is no fair use privilege to make a digital copy ofanything, because a digital copy could potentially generate millions of perfect digitalcopies.
Thus, the motion picture industry is suing Sonic Blue for marketing Replay TV –a digital video recorder. We’re heard some particularly intemperate language aboutskipping commercials being the same as theft.
Where are they getting this law? They’re making it up, or, rather, they’redescribing what the current statute might say if every single one of its ambiguities wereresolved in their favor. A law requiring everyone to get permission for every digital
copy, even the transient ones in random access memory, and to get permission for everytransmission from computer to computer, and to get permission for each person whoviews, reads, hears or gains access to every copy each time, would be seriously
unworkable. I frankly doubt the courts would go along. But since these cases nevermake it to trial, the courts aren’t being given much of a chance.
The costs of designing systems to maximize access control
So, maybe I’ve persuaded you that we copyright lawyers have a screwy way of
doing business. I probably haven’t convinced you yet that your best course is not to try
to stay out of trouble by writing code that will enforce any limitation the owner wants toimpose, whether the law gives it that right or not. There are at least two reasons why
that’s a bad idea. One is philosophical and the other is practical.
Here’s the philosophical one: Coding a system to maximize copyright-ownercontrol undermines one of the greatest strengths of our culture, and backs away fromwhat libraries and librarians have stood for for many years. Uncontrolled, indeed, wild
information does more for the “Progress of Science” than almost anything else I can thinkof. When you visit a bricks-and-mortar library today and look at a book on a shelf,
nobody checks you ID. When you go to the reserve desk and ask to see a reserve book,the librarian doesn’t phone the publisher to say, “I’ve got a class-three middle-aged
female here in blue jeans who wants to consult your book. May she see it, and, if so,should I give her the upscale edition or the version sponsored by Kmart?” Even when
you check out a book, the library records your name and address in case you fail to returnit, but it doesn’t keep the date in a long-term file, and it certainly doesn’t pass it on to thebook publishers or sell it to marketers. You don’t receive letters that say “Dear Ms
Jones, On the basis of your library records, we’re confident that you’ll be interested inthis special offer… ”
Here’s the practical reason. Let’s imagine that you’ve decided that you don’t
want trouble – you’ll just take the copyright owners’word for what its rights are and codethat into the system. Even that won’t work.

You can’t actually find out who owns the rights you need. Why not? Well, forstarters, there isn’t anywhere to look it up. For the first 185 years in which the US had acopyright system, the overwhelming majority of potentially copyrightable material was in
the public domain. As recently as 25 years ago, when you saw something you wanted touse or share, the default rule was that you were entitled to do so. Unless the object had acopyright notice -- was marked “do not copy” -- you were, with some modest exceptions,entitled to assume it was in the public domain. Why? Because the absence of a
copyright notice ensured that it was in the public domain (even if it hadn’t been before).
Not only that, but the notice had to be accurate, had to tell you when the copyright wasscheduled to expire, and had to tell you to whom you needed to address any request for
permission.
The overwhelming majority of potentially copyrightable works didn’t have thisnotice and entered the public domain the minute copies were publicly distributed. Of theones that bore the prescribed copyright notice, only a fraction were registered, and of thefraction that were registered, only 15% were renewed, so for most of the copyrightprotected works that had the requisite notice, copyright protection lasted only 28 years.
Formalities like notice and renewal get a bad rap these days. We got rid of them
about the time we realized we had become a copyright exporting nation rather than acopyright importing one. We no longer condition copyright protection on a bunch oftechnical requirements. What we miss when we dismiss the formalities as characteristicof a provincial and outmoded attitude is that the formalities were the principal method
embodied in US copyright law for preserving the public domain and encouraging the
public to use, reuse and share potentially copyrightable material. Having abandoned
them, we have created a system in which copyright rights may be owned by a variety ofdifferent people and there is simply no reliable way to find out who they are.
There’s no place to look it up. More fundamentally, we don’t actually know who
owns the digital rights in particular works --- publishers and record companies have beenbrazenly assuming that they do, but the couple of cases that have reached the courts haveconcluded that they are often mistaken. University Microfilms and Lexis/Nexis bothpurchased licenses from the New York Times to produce CD Rom and online versions of
the New York Times. Both were held liable for copyright infringement in a suit boughtby free-lance authors, because the Times had licensed rights it didn’t have. While there
are legal systems that would take well to coding, this isn’t one.
So, what is it you can do? You can do what innovators before you have done.
Figure out how to design your systems so that they meet the information goals you have.
You’re the experts, but I’d think that things like accessibility, reliability, interoperability
and comprehensiveness would figure in there. I would not be in a rush to help anyone
turn your digital libraries into digital copyright kiosks. I’d ask you instead to focus on
designing information spaces that are optimized for the storage and use of information.
Copyright owners need to be paid, and they will be, you may be sure. There are lots ofways to accomplish that. We don’t need to build a world in which information is tightly
controlled and access to it is closely monitored. Some copyright owners – the big ones
who litigate – have focused tightly on control, sometimes to the exclusion of

compensation, because networked digital technology frightens them.
expected to focus on advancing the “Progress of Science.”

They can’t be

Making as much information as possible as widely available as feasible is what
libraries are for. So do that. The copyright uncertainties are going to take a while toshake out, and it’s a mistake to assume that any of us can predict what they will look likewhen the dust settles. By the time they begin to get that settled, you’ll have a better ideaof the sort of exemptions and limitations you need and the sort you can live with. You’ll
be able to design systems that look and work like digital libraries rather than digital
shopping and credit bureaus.