Eldred Opinion Met with Anger, Determination
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The Big Picture

The Eldred decision comes in the middle of an exceptionally charged week in Washington D.C., a day after the RIAA and two technology groups, the Business Software Alliance (BSA) and the Computer Systems Policy Project (CSSP), announced an alliance to fight Senator Fritz Hollings' (D-S.C.) Consumer Broadband and Digital Television Act, which would mandate copyright-protecting technology be embedded in personal computers and consumer electronics. Last week, Representative Rick Boucher (D-Va.) introduced a bill that would reform the Digital Millennium Copyright Act's anti-circumvention clause, which makes it illegal to disable copy-protection technology. Part of the music-and-tech alliance is an agreement to oppose Boucher's bill.

In this context, the Court's decision is resounding loudly in the halls of Congress. McCullagh says: "The prospects for the Boucher bill look a lot worse than they did a week ago. A week ago, the prospects for the Boucher bill looked good for a hearing and probably a mark-up in committee. But now, you have the most important Supreme Court case of this generation saying, 'Well, you guys are full of it; just leave us alone already.' With the RIAA/BPA axis reemerging, the outlook for Boucher and his supporters is much more dim now--I suspect they will not be able to get legislation through this Congress."

McCullagh notes that the Boucher bill deals not only with DMCA reform but also includes a requirement that copy-protected CDs be clearly labeled. "That section, I think, is dead on arrival. The DMCA part, if it's rewritten and reintroduced as a stand-alone bill, it stands a slight chance of moving forward, but the prospects look a lot worse than they did a week ago. If you look at the folks who were supporting Boucher's bill, Intel showed up at the press conference last fall but then they were part of the alliance with the RIAA, so there's a bit of flip-flop there."

The behavior of Intel and other high-tech powerhouses strikes some observers as abandoning Boucher and the DMCA reform cause in order to forestall the Hollings bill. "Clearly that's one interpretation ... I think they were also hedging their bets," McCullagh said. "One suspicion I have--but I haven't done the reporting on this--is that the tech industry saw this really, really nasty bill coming at them, so they got behind Boucher's bill for leverage. Once they got behind Boucher's bill, they were able to say to RIAA, hey, 'You don't like the Boucher bill, well, we don't like the Hollings bill. Let's cut a deal to oppose both.' So they're able to peel off one of their adversaries from that coalition, even if they never actually wanted Boucher's bill in the first place, by showing up at the press conference and making it look like it had legs in this Congress. So, if that is true, it was a masterful move."

EFF's Doctorow is less impressed with such inside-the-Beltway maneuvering; he sees the music-tech alliance as nothing short of a sell-out of the public interest. "Clearly this is preemptive of the Boucher bill. The idea is for the RIAA and Business Software Alliance to team up to make the Boucher bill look extreme, as opposed to a reasonable reaction to the extreme slide away from the public domain into the private domain that we've experienced in the last 20 years. I think it's accurate to say not that the RIAA and BSA have teamed up to oppose all technology mandates but rather that they've teamed up to oppose all technology mandates that they don't support. We don't see Intel walking away from its strong commitment to the broadcast flag, which would make it illegal for technology companies to build digital televisions or indeed home computing devices, which may have a digital television function without the approval of Hollywood studios, and we don't see the recording industry repudiating the Berman bill, the right of revenge bill."

"The Boucher bill needs to happen. We need to realize the agendas of the BSA and RIAA. They're trying to sabotage the Boucher bill, they're not trying to endorse any kinds of public rights or public domain. The Boucher bill is just the tiniest mitigation of the damage that's been done to the public domain thus far. I hope that people will keep their lawmakers abreast of what's going on here, and of the erosion of the American people's property and the lining of the pockets of Fortune 100 media companies."

The Morning After

So, where do copyright reform forces go from here? There's a general consensus among copyright reformers that the decision could be a rallying cry to energize a growing movement of hackers, consumers, and academics.

"I hope this case becomes a rallying point for people who care about the public domain, and this issue, which has been so obscure and hard to understand for most people, creates a more mainstream dialogue in which creators and audiences come to realize how important the public domain is," said EFF's Doctorow.

Kevin Werbach, a computer-industry analyst and writer, wrote in an email: "Some day we'll see Eldred v. Ashcroft as the Dred Scott decision of the 21st century. The movement against copyright extremism may or may not be better off for having lost the case, potentially galvanizing popular support. But it is certainly better off for Larry Lessig having filed and argued it. The case was always a longshot because both the legal and policy arguments for Eldred's position require a paradigm shift. Once you make the conceptual leap, the answer seems obvious. Unfortunately, it cuts against the way so many of our judges and politicians see the world. The publicity that the case generated is one step in the right direction. It promises to be a long struggle, but one eminently worth fighting if we believe in the value of innovation."

McCullagh sees a movement potentially as important as the anti-abortion movement. "Look at what happened to the conservative movement after Roe v Wade. They realized this is a focal point of their political activism, they know who their enemies are, and they want to overturn this ruling. I'm not saying this will have exactly the same affect but it could turn programmers, geeks, and currently sedentary types [into activists] by showing them, hey, the Supreme Court just abdicated its responsibility to Congress, and Congress is not your friend."

EFF's Fred von Lohmann sees the movement as cut from the same cloth as the environmental movement and the civil rights movement. "In the 1960s, everyone thought the environmental movement was hopeless. Today, environmentalism is taught in the schools. ... I think copyright law belongs on the list of important national issues. People don't realize it but copyright law touches virtually every aspect of their lives. The cost of schools is in part a result of copyright. How often textbooks get replaced, the education their children receive, the music they listen to, the television they watch, the kind of books they can buy, all of that is intimately tied to the kind of copyright law we have."

The last words goes to Larry Lessig, again from his weblog. "It has often been said that movements gain by losing in the Supreme Court. Some feminists say it would have been better to lose Roe, because that would have built a movement in response. ... If there is any good that might come from my loss, let it be the anger and passion that now gets to swell against the unchecked power that the Supreme Court has said Congress has. When the Free Software Foundation, Intel, Phyllis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, 'this makes no sense,' then it makes no sense. Let that be enough to move people to do something about it. Our courts will not. ... What the Framers of our Constitution did is not enough. We must do more."

Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.

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