six questions on copyright for jonathan zittrain

SIX QUESTIONS ON COPYRIGHT FOR JONATHAN ZITTRAIN

We spoke with Jonathan Zittrain, assistant professor for Entrepreneurial Legal Studies at Harvard University and faculty co-director of the Berkman Center for Internet and Society.^[26]

Q1:	Is downloading copyright infringement and stealing, or is it fair use? Can you legally download a digital version of a song you bought on a record?
A1:	Fair use is much more narrow than most people think. Fair use is a standard, not a rule, and it often requires a lawsuit to decide it. Many people honestly don't see downloading as stealing, since it doesn't deprive anyone else of the song itself—only a chance to profit from its sale. They might say, "it's not a pie, it's just sniffing the aroma." Still, I think it is generally an infringement to download large amounts of copyrighted material without permission. Even if you already own the corresponding CD, the case could be made that a network-derived copy is infringing.
Q2:	How come it was okay to swap music on tape but now, as music industry executives state, since it's digital and perfect, it isn't? Further, they say it was okay when only a few did it, but now that we have millions to share with it's not okay.
A2:	Copyright law has always been complicated, and now that it routinely impinges on individual behavior, it's all the more a big mess. Conscience and convenience have governed individual behavior in the past; for example, many people feel socially awkward ordering up, say, a descrambler to steal cable TV service. Now copying has become quite convenient. The real objection the music industry has to services like KaZaA and Grokster is that they are thought to seriously dampen profits. So long as the industry frames its pricing around the scarcity of its product, there probably indeed is such an impact.
Q3:	Why do you think so many young (and older) people feel it's OK to download?
A3:	First, because the "stealing," if such it is, is indirect: it's taking money out of the pocket of someone who might otherwise be able to charge for the music. That's a harm, but a distinct one from the harm of, say, having one's car stolen. Second, there is a lasting impression of the American music industry as often being at odds with the creative artists it enlists. People may feel it's OK to copy music if it's "merely" hurting a company that in turn was giving a bad deal to an artist anyway. Finally, consumers want convenience, and the industry has been slow to offer equally convenient legal alternatives.
Q4:	You say copyright law is a big mess. What is your legal opinion of the Digital Millennium Copyright Act?
A4:	The DMCA is a big mess, too. It has reinforced the mercenary instincts of the copyright holders, who now want to see every possible profit from a work go to them and who think that the way to reconcile old business models with new technologies is to alter the technology to suit the business model—which then cuts off a range of other innovation wholly unrelated to intellectual property.
Q5:	You've called the Internet "an instrument of anarchy." Is there any way to plug up the increasingly free flow of information, as the RIAA has attempted to do?
A5:	The record companies are acting like pit bulls. There's a "take no prisoners" attitude on both sides of the issue. It may take the form of a new Internet which uses its own technologies to control copyrighted media.
Q6:	What are the most appropriate solutions to digital piracy, ones that will make all parties satisfied?
A6:	I credit that if copyrights were to be rendered inconsequential by technology, then creators will create less—and many will cease to create at all. There are a number of good alternatives; for example, the iTunes model or Harvard Law professor Terry Fisher's proposal for an alternative compensation system based on compulsory licensing. We need to focus our thinking away from income structures that ossified in the early 20th century and toward a combination of technological advances and rewards for innovation that will enhance rather than stanch the flow of ideas, which is fundamental to a free society.