Wendy Seltzer is a staff attorney for the Electronic Frontier Foundation, as well as a fellow at the Berkman Center for Internet and Society at Harvard University. What follows is a partial transcript of her talk at WTF 2004, as well as some of the Q&A.
I’m here with the EFF hat on. The EFF is the Electronic Frontier Foundation, not the Electronic Freedom Foundation or the Everything for Free Foundation. We look into the future and try to figure out what kinds of legal problems will arise from new technologies — and where old laws won’t translate right.
The copyright law is a thing we are concentrating on right now. Copyright law used to protect us from pirates. Now, copyright law is a tool of censorship. Everything you do on your computer is a copy. Everything you read on the Web is a copy. When Diebold, the electronic voting company, found copies of its internal email logs circulating on the Web and activists were using them to point out flaws in their voting machines, Diebold’s response was “copyright.” These memos are copyright. They sent a notice to the Internet service provider and said that if they want to stay out of the debate, they need to take the information down.
The Online Policy Group got one of those letters and said we don’t want to take this information down. This isn’t copyright infringement. This is fair use. This is informing the populace about something that’s important to our democracy. Diebold sent a notice to the upstream provider, and even though it was a tertiary or quaternary copyright infringement, they didn’t know how to respond and didn’t want to get into a lawsuit. So the OPP was concerned about their connectivity and the EFF filed a lawsuit against Diebold claiming misuse of copyright. That’s still pending, but Diebold is backpedaling and withdrawing their claims saying that they didn’t really want to sue anybody.
There can still be a balance, and there are penalties for abusing the law. That’s an unintended consequence. Because the Internet makes copies of all sorts of activity, all sorts of activity are subject to copyright in ways they haven’t been before.
Jerry Michalski: The DMCA, which was passed in 1998, shows a lot of foresight on the part of those who want to lock the barn door. Is there an antithesis to that, something positive we can pass to circumvent that? Right now there’s a state by state act to create a super-DMCA. Forget that. How can we start a whole new basis for conversation?
Seltzer: We need to change the basis of the debate. We can’t go after bits and pieces of it and try to reintroduce fairness into the DMCA. Models like the Creative Commons project give people, creators, an alternative that allows them to reserve some rights, not all rights. There is a middle ground, a combination of machine-readable code, human-readable code, and lawyer-readable code. Works can be valuable outside the context of all rights reserved all the time. There can be value when there’s no monetary price. If Disney can reincorporate things into his movies, we should be able to reincorporate Disney.
Michalski: I’ve started thinking a lot about the concept of ownership. Spectrum as property, intellectual as property, we’ve taken ownership to some extreme at this point. Comments about the commons tend to fall on deaf ears because people don’t have a notion of ownership. Does ownership go anywhere? What are our preconceptions about ownership?
Seltzer: We look for counter-examples that show the unowned can be valuable. Cory Doctorow published a book online, but that doesn’t mean that no one’s buying his book or that he’s going hungry on the streets. People are remixing his book in ways that he couldn’t, and he’s on contract to write several more. The concept of ownership takes value away from us rather than creating value.